Smt. M.R. Sunitha

IN THE COURT OF THE PRINCIPAL DISTRICT JUDGE: ADILABAD

Present: - Smt. M.R. Sunitha,

Principal District Judge, Adilabad

MONDAY THE 6 TH OF MARCH 2023

A.S. NO. 27 OF 2019

Between:

Nadimetla Santhosh, S/o Rajalingu, Age:40 years, Occ:Government teacher working at ZPHS school, Chanda village, Mandal and district Adilabad. … APPELLANT/DEFENDANT No.1 AND

1)Mora Vittal, S/o Pothanna, Age:71 years, Occ:Agriculture, R/o H.No.2-1- 127,Bokkalguda, Adilabad.

2)Mora Madhav, S/o Pothanna, Age:65 years, Occ:Agriculture, R/o H.No.2-1- 127/1, Bokkalguda, Adilabad. … RESPONDENTS/PLAINTIFFS

3)The Commissioner, Municipal, Adilabad. … RESPONDENT/DEFENDANT NO.2

ON APPEAL AGAINST THE JUDGMENT AND DECREE DATED

30.08.2019 PASSED BY THE JUNIOR CIVIL JUDGE, ADILABAD

IN

OS.NO. 99 OF 2013

Between:

Mora Vittal and another

.. PLAINTIFFS

A.S. No. 27 of 2019 2

On the file of Prl.District Judge, Adilabad

AND

1)Nadimetla Santosh

2)The commissioner, Municipality, Adilabad

.. DEFENDANTS

This Appeal Suit is coming before me for final hearing on 04.11.2022 in the presence of Sri Y.Vishnu Bhagwan, Advocate for appellant, while Sri T.Venkat Kumar, Advocate for respondents No.3 and on hearing both sides and on perusal of the material on record and the matter having stood over for consideration till this day, this Court made the following:

J U D G M E N T

1) This appeal is preferred by the appellants under Order XLI Rule 1(2) of Civil Procedure Code against the decree and judgment passed by the learned Junior Civil Judge, Adilabad in O.S.No.99 of 2013 dated 30.08.2019.

2) For the sake of convenience, the parties to this appeal are hereinafter referred to as they are arrayed before the trial Court.

3) The averments of the plaint, in brief, are as follows:

i) The mother of the plaintiffs have purchased the house bearing

No.2-1-127 situated at Bokkalguda within specific boundaries from one Sundari Pochanna under registered sale deed Doc.No.28/1957.

Since then, the plaintiffs along with their family members have been residing therein and paying municipal taxes from time to time. The

A.S. No. 27 of 2019 3

On the file of Prl.District Judge, Adilabad defendant No.1 purchased a tin shed along with open area in the year 2008 from one Vittal tailor and started construction work in the month of May, 2009 which is on the southern side to the house of plaintiffs.

ii) The house of plaintiffs is old one and after the wall of plaintiffs, there is an open space of plaintiffs measuring 2.9’ inches on the southern side to their house at the eastern corner. Similarly there is an open space of plaintiffs after their wall measuring 8.3’ inches which is on the southern side at western corner. But, the defendant

No.1 encroached the said area by constructing wall from east to west as indicated in the map leaving only open space of 2 feets. The defendant No.1 also dug a borewell in the said area, installed electric jet pump on it and also fixed the service meter to the wall of the plaintiffs.

iii) While laying slab, the defendant encroached the house of plaintiffs and extended the slab behind his wall and the same is projected over and above the house of plaintiffs, which is illegal and against the rules and permissions.

A.S. No. 27 of 2019 4

On the file of Prl.District Judge, Adilabad iv) Plaintiff No.1 is residing in rented house and plaintiff No.2 used to attend the agriculture works Laxmipur village. By taking advantage of the same, defendant No.1 without their knowledge, encroached the area of plaintiffs. When the plaintiffs questioned about the same and complained against defendant No.1 on 09.06.2009, the town planning officer inspected the spot and found the illegal construction, encroachment and informed about the same to defendant No.2. In turn, the defendant No.2 got issued notice

dated 25.07.2009 and 30.07.2009 with a direction to remove the

unauthorized and illegal construction within 3 days.

v) The defendant received notice but he neither removed, nor responded. Due to illegal construction of wall in the area of plaintiffs, by leaving only 2 feet between the wall of plaintiffs and defendant No.1, there is every possibility of storage of water in rainy season and it would cause damage to the wall of plaintiffs and it may collapse at any point of time. Hence, prayed to grant mandatory injunction directing the defendant No.2 to demolish the wall of defendant No.1 along with slab which is projected over the house of plaintiffs.

A.S. No. 27 of 2019 5

On the file of Prl.District Judge, Adilabad

4) The defendant No.1 filed counter contending that, he is not aware of the fact that the plaintiffs purchased the house bearing No.2-1-127. He submitted that, he purchased the house bearing No.2-1-126 measuring 23x40 ft through registered sale deed bearing No.4210/2006 dated 01.12.2006 from one D.Sanjay and after dismantling the earlier structures, applied permission for construction of RCC building to the Municipality and the same was sanctioned and the defendant started construction in

March 2009 after obtaining permission from Municipality, which is on the southern side of house of plaintiff. The plaintiff No.1 gave complaint to defendant No.2 for which he had given suitable reply by requesting the commissioner, Municipality to visit the spot but they did not visit the spot.

As defendant No.2 did not take any action, he constructed the house as per permission. He further contended that he never encroached the land of plaintiff as alleged in the plaint and prayed to dismiss the suit.

5) The defendant No.2 municipality filed written statement submitting that the defendant No.2 granted permission to defendant No.1 for construction but the defendant No.1 was carrying construction deviating the plan sanctioned. The permission was granted on 16.03.2009 vide

A.S. No. 27 of 2019 6

On the file of Prl.District Judge, Adilabad

Proc.No.G1/157/717/2009 but the defendant No.1 carried construction in contravention of the permission. As such, defendant No.2 issued provisional notice vide No.13/MCA/2009 on 25.07.2009 and even after receiving the same, the defendant No.1 did not oblige. As such, defendant

No.2 issued another notice confirming the provisional order on 30.07.2009 and the confirmation also received by D1, even after that he did not remove the structures made in contravention of permission. Hence, prayed to pass appropriate orders.

6) Based on the above pleadings, the trial Court framed the following issues for trial:

i) Whether the encroachment made by defendant No.1 by declared as illegal and unauthorized and the mandatory injunction be issued directing the defendant No.2 to demolish the wall of defendant No.1 along with slab area which is projected over and above the house of plaintiffs as prayed for? ii) Whether the defendant No.1 is directed to remove the borewell and motor pump installed on it and also the service meter fixed to the wall of plaintiffs and defendant No.1 by restrained from carrying out further construction of parapet wall and other works and prayed for? iii) Whether the defendant No.1 is carrying construction in contravention of permission issued by defendant No.2? iv)To what relief?

A.S. No. 27 of 2019 7

On the file of Prl.District Judge, Adilabad

7) During trial before the trial Court, the plaintiff No.1 himself examined as PW1 and Exs.A1 to A5 were marked. On the other hand, defendant No.1 examined as DW1 and also examined the deputy bank manager as DW2 and Exs.B1 to B8 were marked on their behalf.

8) On hearing both sides and after considering the oral and documentary evidence available on record, the learned Junior Civil Judge,

Adilabad decreed the suit with costs by declaring construction and encroachment made by the defendant No.1 as illegal and unauthorized and also entitling the plaintiffs for mandatory injunction directing the defendant No.2 to demolish the wall of the defendant No.1 along with slab area which is projected over and above the house of the plaintiffs and further defendant No.1 is directed to remove the borewell and motor pump installed in it and also service meter fixed to the wall of the plaintiffs and also restraining defendant No.1 from carrying out further construction of parapet wall over the projected are and also carrying the plastering work in the illegal constructions.

A.S. No. 27 of 2019 8

On the file of Prl.District Judge, Adilabad

9) Aggrieved by the said judgment and decree, the appellant/defendant

No.2 preferred this appeal on the following grounds:-

i) The lower court grossly erred in decreeing the suit by declaring the construction and encroachment made by appellant as illegal and entitled the petitioner for mandatory injunction judgment which is contrary to law, facts and against principles of natural justice and liable to be set aside.

ii) The lower court failed to appreciate the documentary evidence placed by respondents came to a wrong conclusion without examining the officers of Municipality and in the absence of non- examination of author of documents, the finding of lower court is bad in law.

iii) The lower court based on the suit schedule map of respondent/plaintiff without any proof decreed the suit. Moreover, the appellant obtained bank loan and with permission of municipality and after spot inspection, he constructed the house.

Without considering Exs.B4 and B5, the lower court came to an erroneous conclusion.

iv) The lower court ought to have observed that, the respondents filed the map prepared by them in order to suit their case without filing a petition to appoint advocate commissioner to prove the extent alleged to be encroached by the appellant.

A.S. No. 27 of 2019 9

On the file of Prl.District Judge, Adilabad

Hence, prayed to allow the appeal by setting aside the judgment and decree passed by the trial Court.

10) No additional evidence either oral or documentary is adduced by the parties on either side in this appeal suit.

11) Heard both sides.

12) Now the points that arise for consideration in deciding the appeal are:

1) Whether the impugned judgment and decree of trial Court is unsustainable and requires any interference by this Court while sitting in appeal, if so, with what observations?

2) To what result?

POINT NO. 1:

13) Since the appellate court is the last court of facts, this court intends to reexamine the evidence adduced by both the parties.

A.S. No. 27 of 2019 10

On the file of Prl.District Judge, Adilabad

14) The evidence of plaintiff No.1 as PW1 is that, his mother purchased the suit schedule property in 1953 house bearing No.2-1-127 with area comprising of 63’x37.6’ bounded by government road to the north, house of

Kistanna barber (south), drain and way to the east and another way on the west and since then, he along with the plaintiff No.2 are residing in the said house by paying municipal taxes in time.

15) His further evidence is that, the defendant No.1 purchased a tin shed along with open area on the southern side of his house, in the year 2008 and started construction in the year 2009 by encroaching some of the open area after their wall and also dug a borewell and installed a jet pump and fixed service meter to his wall and while laying the slab, he encroached their house and the slab is extended behind his wall and the same is projected over and above their house which is totally illegal and as such, gave complaint to the defendant No.2 about the encroachment and illegal construction of the defendant No.1.

16) Further, the defendant No.2 issued a notice on 25.07.2009 to the defendant No.1 directing him to remove the unauthorized and illegal

A.S. No. 27 of 2019 11

On the file of Prl.District Judge, Adilabad construction within a period of 3 days and in case of not complying with the notice, the illegal construction has to be demolished but due to subsequent political pressure, the defendant No.2 did not pursue the matter and as such, the plaintiff approached the court for redressal.

17) Coming to the cross examination, this witness admitted that he along with his brother sold away his property measuring 67’x37’ under registered sale deed pending disposal of the suit to one Jameel 4 or 5 years back and the said person retained Rs.1,00,000/- out of the sale consideration since a dispute is pending with respect to the suit schedule property in the court.

18) DW1 is the defendant No.1 in this case and his evidence is that, having purchased the house bearing No.2-1-126 admeasuring 23x40’sft through a registered sale deed dated 01.12.2006, he dismantled the earlier structures and obtained permission for constructing the RCC building as per the permission and map sanctioned by the town municipality, he constructed the house and residing there more than 9 years and no open space of the plaintiffs is left after wall measuring 8’.3’’ inches which is on the southern side at western corner and also there is no open space of

A.S. No. 27 of 2019 12

On the file of Prl.District Judge, Adilabad plaintiffs measuring 2’.9’’ on the southern side to their house and he has not encroached the area of the plaintiff but dug a bore well in his area and fixed the electric jet pump and also the service wire to his wall but not violated the rules of the municipality.

19) Coming to the cross examination this witness admitted that he has received two notices from the municipality dated 25.07.2009 and 30.07.2009 from the Commissioner, Municipality stating in the first notice that, the construction of the house is illegal and in the second notice to remove the illegal construction. Though DW1 stated that he has issued reply to the municipal authorities explaining his legal construction, he admitted that he did not file the copy of the same in the court. He also admitted that the plaintiff and his family were residing in their house since 15 years and his house is situated towards the southern side of the plaintiffs house.

20) In support of the defence taken by the defendant No.1, he relied upon the evidence of DW2 who is the deputy manager of Bank of India, Punjab chowk branch to speak that, he has obtained loan from the said bank for construction of his house and the loan would not be sanctioned if the house

A.S. No. 27 of 2019 13

On the file of Prl.District Judge, Adilabad is not in accordance with the Municipal rules and regulations and got marked Exs.B4 to B8 which are the link documents of the defendant No.1.

21) The admitted fact is that the plaintiffs and the defendant No.1 are the owners of their respective house properties by virtue of the registered sale deeds in their respective names. At the first instance, the defence taken by the defendant No.1 is that, the plaintiffs have sold their house property after filing of the suit and as such, they have no locus standi to proceed with the suit. As per the settled law, even a neighbor is also the competent person to file a suit against the wrong doer who has violated the rules and regulations prescribed by law under various Acts. Therefore, the contention of the defendant that, the plaintiff has no locus standi can be set aside.

22) The plaintiff in order to prove the encroachment of the defendant

No.1 over his plot and the construction of the defendant against the norms of the Municipal Act, exhibited the notices issued by the defendant No.2 in the name of defendant No.1. Ex.A2 is the provisional notice issued by the

Municipality, Adilabad dated 25.07.2019 to the defendant No.1 directing

A.S. No. 27 of 2019 14

On the file of Prl.District Judge, Adilabad him to stop the construction work and remove the unauthorized construction done so far. In the said notice, he was also asked to show cause within 3 days why the said provisional order shall not be confirmed.

23) Ex.A3 is the second notice dated 30.07.2019 served on the defendant

No.1 confirming the provisional order and directing him to remove the unauthorized constructions within 3 days failing which, the Municipal authorities would proceed to demolish the same on costs payable by the defendant No.1.

24) Though DW1 stated that he has given reply to the said notice and the matter was pacified thereon, he did not file any supporting document to show the same and conclude that the issue has been pacified and the notices of the municipal authorities under Exs.A2 and A3 are declared null and void.

25) On the other hand, the photos filed by the plaintiff under Ex.A5 shows the projection of the extended slab on to the tiled house of the plaintiffs. Though DW1 contends that the plaintiff is left with no land

A.S. No. 27 of 2019 15

On the file of Prl.District Judge, Adilabad except the constructed area and he has made construction in his own land, it is mandatory to construct the building by leaving setbacks of 3 feet from the compound wall on all sides. But, the photographs do not reflect neither the compound wall nor the space mandated showing the setback.

In such circumstances, where the slab has been extended and protruded on to the house of the plaintiff, certainly the rain water would directly flow onto the house of the plaintiff which causes great hardship for his survival in the said house.

26) The evidence of DW2 that, they will not issue housing loan without inspecting the construction, is no way helpful to the defendant No.1 since the loan will be issued basing on the progress in the construction but not as stated by the defendant.

27) Therefore, since they are against the Rules causing obstruction to the plaintiff for passage of air and light and so also the flow of the rain water into the drainage, the said structures have to be removed.

A.S. No. 27 of 2019 16

On the file of Prl.District Judge, Adilabad

28) The trial court elaborately discussed the oral and documentary evidence adduced by both the parties and rightly decreed the suit by granting mandatory injunction and directing the defendant No.2 to demolish the wall of the defendant No.1 along with slab area which is projected over and above the house of the plaintiffs and has given a direction to the defendant No.1 to remove the bore well and motor pump installed and the service meter fixed to the wall of the plaintiffs and not to carry any further construction of the parapet wall over the projected area and also carrying the plastering works in the illegal construction and this court has no occasion to interfere with the orders of the trial court while sitting in appeal. Point no.1 is accordingly answered.

29) POINT NO.2:

IN THE RESULT, this appeal is dismissed confirming the Judgment and Decree passed by the learned Junior Civil Judge, Adilabad in OS No.99 of 2013 on 30.08.2019. No costs.

Typed by the stenographer to my dictation and after correction

pronounced by me in open court this the 6th day of March 2023.

PRL. DISTRICT JUDGE

ADILABAD

IN THE COURT OF THE PRINCIPAL DISTRICT JUDGE: ADILABAD

Present: - Smt. M.R. Sunitha,

Principal District Judge, Adilabad

TUESDAY THE 21 st OF MARCH 2023

A.S. NO. 33 OF 2020

Between:

1. Smt.Bandari Jayalaxmi, W/o Late Bandari Salamanraj, Age:45 years, Occ:Housewife,

2. S.Kishore Kumar, S/o Late S.Satyanarayana, Adopted son of Late Bandari Salamanraj), Aged 31 years, Occ:Student,

3. S.Alekhya, D/o Late S.Satyanarayana, (Adopted daughter of Late Bandari Salamanraj) Aged:27 years, Occ:Household, All R/o H.No.1-1-901, Ravindranagar, Adilabad. … APPELLANTS

AND

1. The Divisional Forest Officer (DFO), Adilabad, Dist.Adilabad.

2. B.Jivarathnam (Died) per LRs,

3. Deenamma, W/o Late B.Jeevarathnam, Aged:54 years, Occ:Housewife (Died)

4. Tabita, W/o Abiman, Aged about 51 years, Occ: Housewife,

A.S. No. 33 of 20202

On the file of Prl.District Judge, Adilabad

5. Bandari Meshak, S/o Late B.Jeevarathnam, Aged:39 years, Occ:Auto driver, All R/o H.No.3-1-1/3/512/1/7, Mahalaxmiwada, Adilabad. … RESPONDENTS

ON APPEAL AGAINST THE JUDGMENT AND DECREE DATED

12.05.2020 PASSED BY THE SENIOR CIVIL JUDGE, ADILABAD

IN

SOP.NO. 1 OF 2016

Between:

Smt.Bandari Jayalaxmi and 2 others

.. PETITIONERS

AND

The Divisional Forest officer, Adilabad and (4) others

.. RESPONDENTS

This Appeal Suit is coming before me for final hearing on 02.03.2023 in the presence of Sri A.A.Raheem, Advocate for appellants, while Sri Rahul Waghmare, Advocate for Respondent No.4 and J.Narender, Advocate for Respondent No.5, respondent Nos.2 and 3 reported died and though notice served, respondent No.1 did not appear the court and on hearing both sides and on perusal of the material on record and the matter having stood over for consideration till this day, this Court made the following:

J U D G M E N T

1) This appeal is preferred by the appellants under Section 384 of Indian

Succession Act against the decree and Order passed by the learned Senior

Civil Judge, Adilabad in SOP.No.1 of 2016 dated 12.05.2020.

A.S. No. 33 of 20203

On the file of Prl.District Judge, Adilabad

2) For the sake of convenience, the parties to this appeal are hereinafter referred to as they are arrayed before the trial Court.

3) The averments of the petition, in brief, are as follows:

i) The petitioner is the wife of deceased Salamanraj and she has two children blessed with her first husband. After his death, she married Salamanraj on 06.11.2002 at Sri Rama Temple, Bhoraj and he adopted her two children. Her husband Salamanraj died on 02.03.2015 leaving behind her and his father/respondent No.2 as his legal heirs.

ii) The petitioner approached respondent No.1 office for receiving the service benefits of deceased B.Salamanraj on that, R1 asked her to furnish legal heir/succession certificate. Therefore, she approached the court for issue of succession certificate.

4) The respondent No.1 filed counter admitting the avocation of

Salamanraj, who worked in their department as forest section officer. The father of Salamanraj i.e. respondent No.2/B.Jivarathnam submitted an

A.S. No. 33 of 20204

On the file of Prl.District Judge, Adilabad application stating that his son was appointed as forest beat officer on his voluntary retirement and expired on 02.03.2015 and requested to provide job on compassionate grounds to his younger son Meshak Raj. It is further submitted in the petition that, petitioner’s first husband is Satyanarayana and she is not the legally wedded wife of Salmanraj. Hence, he prayed to pass necessary orders.

5) Respondents No.4 and 5 filed counter denying the petitioner No.1 is the wife of Salmanraj stating that her husband is one Satyanarayana and has two children. Petitioner No.1 never married Salmanraj and he never adopted petitioner Nos.2 and 3 hence, prays to dismiss the petition.

6) Since respondent No.2 died during pendency of proceedings, the petitioner Nos.3 to 5 are impleaded as LRs.

7) During trial before the trial Court, the petitioner No.1 examined herself as PW1 and Exs.A1 to A15 were marked and also got examined

PW2 on her behalf. On the other hand, respondent No.5 is examined as

A.S. No. 33 of 20205

On the file of Prl.District Judge, Adilabad

RW1, respondent No.4 is examined as RW2 and also got examined RW3 and marked Exs.B1 and B2.

8) On hearing both sides and after considering the oral and documentary evidence available on record, the learned Senior Civil Judge,

Adilabad dismissed the petition without costs.

9) Aggrieved by the said Order and decree, the appellants/petitioners preferred this appeal on the following grounds:-

i) The order under appeal is contrary to law and facts of the case based on assumptions and presumptions but not based on the merits of the case.

ii) The trial court failed to appreciate that the marriage of petitioner No.1 took place with the deceased on 06.11.2002 at Bhoraj

Ram Temple by garlanding which is very much evident from the marriage photos.

iii) The trial court failed to observe the Aadhar card, employee health card of the deceased filed in support of the claim by the petitioner and relied upon the contradictory evidence of the respondents.

iv) The trial court failed to appreciate that the funeral expenditure of the deceased were paid to the petitioner in the capacity of his wife.

A.S. No. 33 of 20206

On the file of Prl.District Judge, Adilabad

v) The trial court failed to appreciate the death certificate issued by Me-Seva center and the legal notice got issued by the petitioner on the respondent No.1 for furnishing the service benefits payable to the family members of the deceased, but the same were not at all discussed by the trial court.

For all the aforesaid reasons, prayed to allow the appeal by setting aside the order and decree passed by the lower court and issue succession certificate as prayed for.

10) No additional evidence either oral or documentary is adduced by the parties on either side in this appeal suit.

11) Heard both sides.

12) Now the points that arise for consideration in deciding the appeal are:

1) Whether the impugned order and decree of trial Court holds good or needs any interference by this Court while sitting in appeal and if so, with what observations?

2) To what result?

POINT NO. 1:

A.S. No. 33 of 20207

On the file of Prl.District Judge, Adilabad

13) Since the appellate court is the last court of facts, this court intends to scrutinize the evidence adduced by the petitioners to prove their case.

14) The petitioner filed the OP for issuance of succession certificate

U/sec.372 of Indian Succession Act, 1925 to enable her to receive the amounts lying in the name of the deceased Bandari Salamanraj from the respondent No.1, the divisional forest officer, Adilabad, who was the drawing officer of the deceased.

15) First of all, what is a Succession certificate?

Succession certificate is a document issued by a competent court (civil) certifying a rightful person to be the successor of a deceased person.

This certificate authorizes successor(s) to realize debts and securities of the deceased person.

16) Whether the petitioners are the rightful persons to be issued with succession certificate?

The evidence of the petitioner No.1 is that, after the death of her first husband Satyanarayana, the deceased Salamanraj married her and also

A.S. No. 33 of 20208

On the file of Prl.District Judge, Adilabad accepted her two children begotten through the wedlock with her first husband and all the four of them lived under one roof till his death on 02.03.2015 leaving behind them as his legal heirs along with his father/respondent No.2.

17) The petitioner No.1 in support of her case, filed the following documents:-

Ex.A1 is the marriage certificate of Bandari Salamanraj with Bandari

Jayalaxmi dated 06.11.2002 issued by Sri Ram Mandir, Bhoraj.

Ex.A2 are the photographs showing the garlanding of the petitioner and the respondent.

Ex.A3 is the original ration card dated 23.10.2005 pertaining to the

Bandari Salamanraj showing the petitioner Nos 1 to 3 as his wife and children.

Ex.A4 is the TSGLI policy bond of the deceased dated 01.11.2004 and the name of the nominee is mentioned as Jayalaxmi.

Ex.A5 is the employee health scheme card of the deceased Salamanraj and Ex.A6 is the employee health scheme card of the petitioner No.1

A.S. No. 33 of 20209

On the file of Prl.District Judge, Adilabad showing her status as wife of the deceased with the employee

ID.No.1320926.

Ex.A7 is the request letter by the petitioner No.1 addressed to the

District Collector, Adilabad dated 22.06.2015 for change of address in the death certificate.

Ex.A8 is the request letter forwarded by the petitioner No.1 to the

District Collector, Adilabad dated 03.08.2015 to take action against the brother of the deceased since he has shifted the dead body of her husband to his residence at Mahalaxmiwada and trying to create false documents and get the job of her husband on compensatory grounds for which she is rightly entitled.

Ex.A9 is the Letter addressed by the Divisional forest officer to submit the legal heir certificate for sanction of the death benefits of

B.Salamanraj (forest section officer) in view of two representations received from B.Jayalaxmi and B.Jeevarathnam claiming themselves to be the legal heirs of late B.Salamanraj.

Ex.A10 is the letter addressed by the petitioner No.1 for correction of her name as B.Jayalaxmi instead of Vijayalaxmi and her name being corrected by the DFO vide RC.No.771/2015/52, dated 19.09.2015.

A.S. No. 33 of 202010

On the file of Prl.District Judge, Adilabad

Ex.A11 is the copy of legal notice dated 03.10.2015 got issued by the petitioner No.1 calling upon the DFO to furnish the service benefits payable to her for furnishing the same before the court for obtaining the legal heir certificate.

Ex.A12 is the original postal receipt

Ex.A13 is the death certificate of deceased Bandari Salamanraj issued through Mee-Seva showing the date of death is 02.03.2015.

Ex.A14 is the letter addressed by DFO furnishing the death benefits payable to the legal heirs of the deceased.

Ex.A15 is the group photograph showing the petitioner No.1 and the deceased.

18) It was brought on record during the cross examination of this witness that, she was born in Vizag and was married to Singampalli Satyanarayana, the resident of Khammam District while she was studying 10th standard and later gave birth to the petitioner No.2 in the year 1985 and the petitioner No.3 in 1989 and after the death of her first husband, she married the deceased Salamanraj in the year 2002 and converted into Christianity and was offering prayers regularly in the church.

A.S. No. 33 of 202011

On the file of Prl.District Judge, Adilabad

19) She admitted that, she did not file the death certificate of her first husband and further, there was no written document showing that the deceased adopted her children but promised to look after them as his children.

20) She admitted Ex.B1 Aadhar card in her name and Ex.B2 food security card confronted to her and stated that, her voter ID card was at Yellandu. It was suggested to her that, her first husband was alive and even after her second marriage, she used her first husband’s name for obtaining Ex.B1 and

B2 and as such, she never married the deceased and never resided at

Adilabad and created false documents for getting the death benefits of the deceased.

21) PW2 who is the resident of Adilabad also confirmed the marriage of the petitioner No.1 with the deceased Salamanraj at Bhoraj Sri Rama temple and the acceptance of the petitioners No.2 and 3 as his children and the survival of the petitioners along with the deceased Salamanraj under one

A.S. No. 33 of 202012

On the file of Prl.District Judge, Adilabad roof till his death due to ill health and the petitioners No.1 to 3 and the respondent No.2 being the legal heirs of the deceased.

22) During the cross examination, this witness admitted his acquaintance with the deceased Salamanraj since 10 years and his house beside the house of the deceased and his profession as a forest range officer and the age of the children of Salamanraj as 13 and 15 years at the time of his acquaintance.

23) Since the father of the deceased died after filing his counter disputing the marriage of the petitioner No.1 with his son and the adoption of the petitioners No.2 and 3 by his deceased son and claiming the job on compensatory grounds for his younger son Bandari Meshak for the reason that, the deceased acquired the job on compensatory grounds since he has taken voluntary retirement from his service.

24) Since the respondent No.2 died, the respondent Nos.3 to 5 being his wife, daughter and son were brought on record and subsequently, the respondent No.3 also died during pendency of proceedings.

A.S. No. 33 of 202013

On the file of Prl.District Judge, Adilabad

25) The evidence of the respondent No.5 Bandari Meshak as RW1 is total denial of the case of the petitioner No.1. According to RW1, the petitioner

No.1 is not the wife of his deceased brother and they never lived under one roof along with the petitioner Nos.2 and 3 and the petitioners fabricated all the documents in order to knock away the service benefits of the deceased and they are not entitled for getting succession certificate and infact he along with his sister are the legal heirs of his deceased brother and as such, they are entitled for succession certificate.

26) During the cross examination, this witness admitted that, his brother

Salamanraj obtained customary divorce with his first wife Savitha and was residing at Ravindranagar colony on rent along with the petitioner No.1 together until his death. He added that, the petitioners No.2 and 3 never stayed with them. He also admitted that, he along with his elder brother and the petitioner are being seen in the photograph vide Ex.A15. He also admitted that the funeral expenditure was handed over to the petitioner

No.1 by the forest department.

A.S. No. 33 of 202014

On the file of Prl.District Judge, Adilabad

27) The evidence of the respondent No.4 Tabita as RW2 is also on the same lines of RW1. This witness also admitted during her cross examination that, her deceased brother obtained customary divorce with his first wife before the elders.

28) RW3 is the resident of Mahalaxmiwada and his evidence is that, the know the deceased Salamanraj since 20 years as a forest section officer and he never married the petitioner No.1 and she created a false story to knock down the service benefits of the deceased.

29) Coming to the cross examination, this witness stated that, he petitioner is the household worker in the house of Salamanraj. He could not withstand the cross examination and could not give any information regarding the details of the marriage of the deceased. Hence, his evidence is noway helpful to the respondents.

30) The trial court dismissed the succession OP holding that, the petitioner failed to prove the death of her first husband and proof of her second marriage with Salamanraj as per Hindu caste customs and

A.S. No. 33 of 202015

On the file of Prl.District Judge, Adilabad

Saptapadi through documentary evidence and the photographs and exchange of garlands itself does not prove the marriage in between the petitioner and the deceased and further, no proof of Salamanraj obtaining divorce legally from his first wife.

31) On scrutiny of the whole evidence adduced by the petitioners and the respondents and the documents relied upon by them, the petitioner has placed ample of evidence to show that, she is the wife of the deceased

Salamanraj. At the first instance, Exs.A1 to A6 are sufficient to prove that, the deceased Salamanraj has declared the petitioner No.1 as his wife in all the relevant documents.

32) The photostat copy of the receipt prima facie supports the claim of the petitioner to show that, she was paid an amount of Rs.10,000/- by the

DFO to meet the funeral expenditure of her husband.

33) The defence of the respondent No.4 and 5 by exhibiting B1 and B2 showing the residence of the petitioner No.1 at Yellandu even as on 2015 cannot be taken into consideration, since the technology has risen above the

A.S. No. 33 of 202016

On the file of Prl.District Judge, Adilabad sky and there is no bar or yardstick to stop creation of any document as per our whims and fancies.

34) The respondent No.2 in his counter as well as Rws 1 and 2 clearly admitted that, the deceased Salamanraj has taken customary divorce from his first wife which shows that, a custom prevails in their community of dissolution of the marriage in the presence of the elders. A customary divorce is a recognized method of separation without involving the court if such a custom is recognized by marriage laws.

35) The argument of the respondents No.4 and 5 that, the petitioner No.1 has fabricated all the documents to knock away the death benefits of the deceased Salmanraj cannot be sustained for the simple reason that, there is no explanation from any of the witnesses as to the arrival of the petitioners from Yellandu to Adilabad which is situated to the corner of Telangana

State.

36) As already discussed above, ample of evidence is brought on record to prove that, the petitioner No.1 is the wife of the deceased Salamanraj and

A.S. No. 33 of 202017

On the file of Prl.District Judge, Adilabad she is entitled for Succession certificate as prayed for and the order of the trial court has to be set aside. Point no.1 is accordingly answered.

37) POINT NO.2:

IN THE RESULT, this appeal is allowed without costs by setting aside the order and decree dated 12.05.2020 passed by the Senior Civil Judge, Adilabad in SOP.No.1 of 2016. The trial court is directed to issue succession certificate to the appellant/petitioner No.1 under due process.

Typed by the stenographer to my dictation and after correction

pronounced by me in open court this the 21st day of March 2023.

PRL. DISTRICT JUDGE

ADILABAD

IN THE COURT OF THE PRINCIPAL DISTRICT JUDGE: ADILABAD

Present: - Smt. M.R. Sunitha,

Principal District Judge, Adilabad

FRIDAY THE 24 TH OF MARCH 2023

A.S. NO. 21 OF 2021

Between:

1. Tumma Srivani, W/o Tumma Mallesham, Age:38 years, Occ:Business, R/o Plot No.407, Third Floor, Sri Balaji’s Renuka Residency, Teacher’s Colony, Dasnapur, Adilabad. … APPELLANT

2. Meraj Begum, W/o Late Shaik Ibraheem, Occ:Tailor, R/o Bhoktapur locality of Adilabad town, District Adilabad. … Proforma Party

3. Faheema Banu, W/o Late Syed Baba, Occ:Tailor, R/o Bhoktapur locality of Adilabad town, District Adilabad. … Proforma Party

AND

Sri Balaji Renuka Residency Welfare Society, Rep. by its President Shyam Rao Rathod, S/o Shanker Rathod, Age:42 years, Occ:Govt.Employee, R/o Plot No.201, First Floor, Sri Balaji’s Renuka Residency, Teacher’s Colony, Dasnapur, Adilabad. … RESPONDENT

A.S. No. 21 of 2021 2

On the file of Prl.District Judge, Adilabad

ON APPEAL AGAINST THE JUDGMENT AND DECREE DATED

18.03.2021 PASSED BY THE SENIOR CIVIL JUDGE, ADILABAD

IN

OS.NO. 84 OF 2014

Between:

1. Tumma Srivani

.. PLAINTIFF

2. Meraj Begum

3. Faheema Banu .. Proforma parties

AND

Sri.Balaji Renuka Residency Welfare society, Rep. by its President Shyam Rao Rathod

.. DEFENDANT

This Appeal Suit is coming before me for final hearing on 14.10.2022 in the presence of Sri Mohammed Ghous and Abdul Kaleem, Advocates for appellants, while Sri N.Pratap Reddy, Advocate for respondents and on hearing both sides and on perusal of the material on record and the matter having stood over for consideration till this day, this Court made the following:

J U D G M E N T

1) This appeal is preferred by the appellants under Order XLI Rule 5(1) of Civil Procedure Code against the decree and judgment passed by the learned Senior Civil Judge, Adilabad in O.S.No.84 of 2014 dated 18.03.2021.

2) For the sake of convenience, the parties to this appeal are hereinafter referred to as they are arrayed before the trial Court.

A.S. No. 21 of 2021 3

On the file of Prl.District Judge, Adilabad

3) The averments of the plaint, in brief, are as follows:

i) The plaintiff No.1 purchased flat No.407 situated at third floor of Balaji Renuka Residency having built up area of 1100 sq.feet including corridor and parking area from one Muthyam Shalini vide

Doc.No.2131/2014 and since then, she along with her husband are in peaceful possession of the said flat.

ii) The plaintiff No.1 is a tailor by profession and eking her livelihood by stitching clothes and employed plaintiff Nos.2 and 3 to assist her. The defendant being the president of said residency along with other flat owners formed an association and registered the same.

iii) The defendant and his yes men are trying to dominate over the other flat owners being residents. On 16.11.2014, the defendant called her and her husband and told them not to carry out the tailoring work in flat No.407 and threatened them to close the work and also threatened not to employ two women to carry out stitching work in flat No.407.

iv) On 17.11.2014, the defendant stopped plaintiff Nos.2 and 3 from entering into the premises of Balaji’s Renuka Residence.

A.S. No. 21 of 2021 4

On the file of Prl.District Judge, Adilabad

Therefore, the plaintiff prays to pass a decree for perpetual injunction against the defendant.

4) The defendant filed written statement admitting the ownership of plaintiff over flat No.407 and contended that, the plaintiff No.1 along with other plaintiffs are preparing dress material in the said flat and her husband is a businessman and conducting commercial activity and there is a flow of 20 to 30 customers daily and the defendant being president, told the plaintiff to follow the by-laws but instead the plaintiff No.1 created nuisance, disturbance and disobeying the rules of society and prayed to dismiss the suit.

5) Based on the above pleadings, the trial Court framed the following issues for trial:

i) Whether the Court has got jurisdiction to entertain the suit?

ii) Whether the plaintiffs are entitled to relief of perpetual injunction as prayed for? iii)To what relief?

6) During trial before the trial Court, the plaintiff No.1 examined herself as PW1 and Exs.A1 to A6 were marked and also got examined PWs 2 and 3

A.S. No. 21 of 2021 5

On the file of Prl.District Judge, Adilabad and got marked Exs.B1 ad B2. On the other hand, defendant No.1 examined DWs 1 and 2 and marked Ex.B3.

7) On hearing both sides and after considering the oral and documentary evidence available on record, the learned Senior Civil Judge,

Adilabad dismissed the suit without costs.

8) Aggrieved by the said judgment and decree, the appellant/plaintiff

No.1 preferred this appeal on the following grounds:-

i) The judgment and decree under appeal is contrary to law, justice and facts of the case.

ii) The lower court failed to appreciate the evidence on record and came to erroneous conclusion.

iii) The Corpus fund of Rs.5,000/- was enhanced to Rs.25,000/- and the defendant collected the said amount and when the plaintiff demanded to refund Rs.20,000/-, the defendant started harassing her and the judgment is liable to be set aside.

iv) The lower court ought to have observed that, DW1 who is not a party to the suit is not having any locus standi to depose before the court.

v) The lower court failed to consider that, without any reasonable grounds, the plaintiff/appellant would not have approached the

A.S. No. 21 of 2021 6

On the file of Prl.District Judge, Adilabad court and the cause of action was created by the defendant and that the society is acting against the interest of members.

vi) The lower court also failed to observe that the defendant failed to prove the flow of customers and thereby causing inconvenience and disturbance to other members by adducing evidence of either watchman or care taker of society.

Hence, prayed to allow the appeal by setting aside the judgment and decree passed by the trial Court.

9) No additional evidence either oral or documentary is adduced by the parties on either side in this appeal suit.

10) Heard both sides.

11) Now the points that arise for consideration in deciding the appeal are:

1) Whether the impugned judgment and decree of trial Court is unsustainable and requires any interference by this Court while sitting in appeal, if so, with what observations?

2) To what result?

A.S. No. 21 of 2021 7

On the file of Prl.District Judge, Adilabad

POINT NO. 1:

12) Since the appellate court is the last court of facts, this court intends to reexamine the evidence adduced by both the parties.

13) The suit is filed by the plaintiff for grant of perpetual injunction against the defendant society represented by its president Shyam Rao for the reason that, she being the owner of flat No.407 in 3rd floor of Balaji’s

Renuka Residency and carrying out her tailoring profession by employing the plaintiff Nos.2 and 3 not only for her livelihood but also to protect the interest of the plaintiff Nos.2 and 3 who are widow women but the defendant obstructing and threatening them not to carry out their stitching work and not allowing the plaintiff Nos.2 and 3 into the premises and therefore, the suit against the defendant to restrain him from interfering with her peaceful possession of her professional work.

14) The plaintiff in support of her case, examined herself as PW1 and reiterated her plaint pleadings. Coming to the cross examination, she deposed that, she was having Sumangali matching center shop at

Ambedkar chowrastha and used to stitch the dress material in her flat and

A.S. No. 21 of 2021 8

On the file of Prl.District Judge, Adilabad the two workers used to visit her house now and then. She admitted that, she is the member of society by paying Rs.25,000/- membership fees and she has to abide to the rules and regulations of the society by following the bylaws and not to create nuisance or inconvenience to the other flat owners.

She also admitted that, the then president advised her to stop creating nuisance or else they will stop providing water to their flat.

15) PW2 is the husband of PW1 and his evidence is also on the same lines of PW1. He clarified during the cross examination that, he has Sumangali

Matching center in the name of his wife and they stitch the dress materials in their flat and two workers attending stitching in their flat. He stated that, he did not attend any general body meeting but he is under the obligation to follow the bylaws of the society.

16) PW3 is the present president of the society and his evidence is that, the plaintiff No.1 did not carry any commercial activity in her business and no customers used to visit the plaintiff either for purchasing or for placing orders for stitching of the clothes and the plaintiff’s husband who is having the matching center was taking orders for stitching the dress material. He

A.S. No. 21 of 2021 9

On the file of Prl.District Judge, Adilabad also deposed that, the defendant and the husband of the plaintiff had disputes in respect of the accounts of the society and excess amount collected by the defendant for corpus fund and due to personal grudges, the defendant harassed the plaintiff and her husband and stopped the plaintiff Nos.2 and 3 from entering into the apartment and act of the defendant was not at all supported by any other flat owners.

17) During the cross examination, he admitted that Shyamrao Rathod was the president for Balaji Renuka residency welfare society for the year 2014-15 and so also till 2019 and he has not filed any document to show that he is the present president of the society. The remaining cross examination went in the manner not related with the present issue but with regard to the corpus fund and the maintenance of the flats, which his noway helpful to the present case.

18) On the other hand, the present president L.Praveen Reddy examined himself as DW1 and at the first instance deposed about the members of the society and the maintenance of the flats, rules and regulations and thereafter coming to the point deposed that, the plaintiff No.1 is conducting

A.S. No. 21 of 2021 10

On the file of Prl.District Judge, Adilabad tailoring work and selling dress material by inviting customers to their flat and there was a flow of about 20 to 30 persons who are visiting the flats in the late night and the continuity of the tailoring work in the late night was causing inconvenience and insecurity to the other flat owners and more particularly to the six flat owners of the third floor in which the plaintiff was residing.

19) During the cross examination, he stated that the plaintiff Nos.2 and 3 were not visiting the house of the plaintiff No.1 for the last 3 months and the plaintiff No.1 used to quarrel with them whenever they questioned about visiting of the customers as they were 20 to 30 persons visiting the flat of the plaintiff No.1 for stitching purpose.

20) He admitted that, there were no incidents of theft and the husband of the plaintiff No.1 was having a matching center at Ambedkar Chowk. He also admitted that, the corpus fund was raised from Rs.5,000/- to

Rs.25,000/- on 13.05.2014 and the plaintiff No.1 also paid the said amount.

In this regard it was suggested that, since the plaintiff No.1 demanded to repay the said amount, they started harassing her from that date.

A.S. No. 21 of 2021 11

On the file of Prl.District Judge, Adilabad

21) DW2 is the owner of flat No.404 and his evidence is also that, the plaintiff No.1 is using the flat for commercial purpose and about 20 to 30 people are visiting the said flat as customers for business and stitching purpose and the said activities are going on throughout the day and also in the late nights and causing disturbance to them and the plaintiff No.1 is quarrelling with them and creating nuisance whenever questioned by them.

22) His cross examination shows that, the corpus fund of Rs.5,000/- paid in the year 2013 was raised to Rs.25,000/- in the year 2014 and that there were no incidents of theft in the apartments in view of the plaintiff carrying on the business but the plaintiff No.1 used to quarrel whenever she was asked about the footages of 20 to 30 person visiting her flat.

23) On scrutiny of the evidence on record, the admitted fact is that, there are disputes among the flat owners and the society with regard to the raising of the corpus fund. Admittedly, the defendant who was the then president was not examined to speak about the specific allegations about him.

A.S. No. 21 of 2021 12

On the file of Prl.District Judge, Adilabad

24) Admittedly, the tailoring profession is one, which is carried on by the housewives at their houses for financial assistance to their families.

Certainly, the person who makes his survival only on stitching business establishes some other venue for the same. In the case on hand, it is on record through the evidence on both sides that, there is a matching center in the name of PW1 at Ambedkar Chowk but the stitching is being carried on in the flat with the help of plaintiff Nos.2 and 3.

25) The document under Ex.A1 stipulates the condition that, the purchaser shall not use the aforesaid flat for any purpose which may cause nuisance or disturbance to the other flat owners and neighbours and shall not use for any illegal or immoral purpose.

26) When the grievance of the other flat owners is that, nuisance is being created by the flow of 20 to 30 persons into the apartments everyday and even in the late nights, it is for the plaintiffs to take care and all precautions not to cause any inconvenience to the other flat owners. The endeavour of the plaintiff No.1 to carry on her work by employing plaintiff Nos.2 and 3 though appreciable, it has to be carried on with the consent of the other flat

A.S. No. 21 of 2021 13

On the file of Prl.District Judge, Adilabad owners so that no occasion arises for them to obstruct in her work. When that is not the case and DWs 1 and 2 clearly states that PW1 keeps on quarrelling with everyone who questions about the entry of customers into the apartments, she is not entitled for any perpetual injunction as prayed for.

27) The trial court elaborately discussed the oral and documentary evidence adduced by both the parties and rightly dismissed the suit and this court has no occasion to interfere with the orders of the trial court while sitting in appeal. Point No.1 is accordingly answered.

28) POINT NO.2:

IN THE RESULT, this appeal is dismissed confirming the Judgment and Decree passed by the learned Senior Civil Judge, Adilabad in OS No.84 of 2014 on 18.03.2021. No costs.

Typed by the stenographer to my dictation and after correction

pronounced by me in open court this the 24th day of March 2023.

PRL. DISTRICT JUDGE

ADILABAD

IN THE COURT OF THE PRINCIPAL DISTRICT JUDGE: ADILABAD

Present: - Smt. M.R. Sunitha,

Principal District Judge, Adilabad

TUESDAY THE 18 th OF APRIL 2023

A.S. NO. 6 OF 2021

Between:

1. Gulam Amjad, S/o Late Gulam Dastagir, Aged: 65 years, Occ:Rtd. Employee in Medical and Health Dept., R/o H.No.4-5- 25, Sanjay Nagar (Amjad Malla), Adilabad.

2. Gulam Rashid, S/o Late Gulam Dastagir, Aged: 67 years, Occ:Employee, R/o H.No.4-5-25/1/2, Sanjay Nagar, (Amjad Malla), Adilabad.

3. Arshiya Fathima, W/o Md.Zaheerullah, Aged:38 years, Occ:Household, R/o H.No.4- 9-77/2, Sanjay Nagar, Adilabad. … APPELLANTS

AND

Md.Zubair Ahmed, S/o Late Shaik Mohammed, Age:67 years, Occ:Rtd. Employee, R/o H.No.3-4-244, Chota Talab, Near Hanuman Temple, Adilabad. … RESPONDENT

A.S. No. 6 of 20212

On the file of Prl.District Judge, Adilabad

ON APPEAL AGAINST THE JUDGMENT AND DECREE DATED

21.12.2020 PASSED BY THE SENIOR CIVIL JUDGE, ADILABAD

IN

OS.NO.58 OF 2013

Between:

Md.Zubair Ahmed

.. PLAINTIFF

AND

Gulam Amjad & Others

.. DEFENDANTS

This Appeal Suit is coming before me for final hearing on 27.02.2023 in the presence of Sri M.Ramana Reddy and T.Venkat Kumar, Advocates for appellants, while Sri B.Madan Mohan, Advocate for Respondent and on hearing both sides and on perusal of the material on record and the matter having stood over for consideration till this day, this Court made the following:

J U D G M E N T

1) This appeal is preferred by the appellants under Order XLI Rules 1 and 2 and Section 96 of Civil Procedure Code against the decree and judgment passed by the learned Senior Civil Judge, Adilabad in O.S.No.58 of 2013 dated 21.12.2020.

2) For the sake of convenience, the parties to this appeal are hereinafter referred to as they are arrayed before the trial Court.

A.S. No. 6 of 20213

On the file of Prl.District Judge, Adilabad

3) The averments of the plaint, in brief, are as follows:

i) The father of plaintiff namely Shaik Mohammad was the original pattedar and possessor of the suit schedule land. After the death of his father, the plaintiff inherited the suit land bearing

Sy.No.33/A/1 admeasuring Ac.1-90 cents from his father and has been in continuous possession of the same. But, the defendants, who are strangers, are interfering with the peaceful possession and enjoyment of the suit land.

ii) On 02.06.2013, the defendants attempted to encroach the said land with a malafide intention to grab the same. However, the plaintiff succeeded to defeat their plan but while leaving, the defendants threatened the plaintiff with dire consequences.

Therefore, the plaintiff prays to pass a decree for perpetual injunction against the defendant.

4) The defendants filed written statement denying the plaint averments and claimed that, the plaintiff had filed the suit by showing the wrong boundaries and created Sy.No.33/A/1, the original pattedar as per pahani 1955-56 was Shaik Mohammed, who in turn sold to one Gandewar Vijay

A.S. No. 6 of 20214

On the file of Prl.District Judge, Adilabad

Kumar in Scy.Nos.33/E and 33/EE belongs to government. The plaintiff impersonating as legal heir of Shaik Mohammed by mentioning himself as

Zuber Ahmed claiming the suit land. On the other hand, the defendants are in possession of the suit land for more than 40 years and constructed a house bearing No.4-5-25 by paying tax and hence prays to dismiss the suit.

5) Based on the above pleadings, the trial Court framed the following issues for trial:

i)Whether the plaintiff is entitled to relief of perpetual injunction as prayed for? ii)To what relief?

6) During trial before the trial Court, the plaintiff examined himself as

PW1 and Exs.A1 to A3 were marked and also got examined PWs 2 and 3 on his behalf. On the other hand, defendant No.1 examined as DW1 and marked Exs.B1 to B6 on their behalf.

7) On hearing both sides and after considering the oral and documentary evidence available on record, the learned Senior Civil Judge,

Adilabad decreed the suit with costs, granting perpetual injunction in favour of the plaintiff restraining the defendants, their agents,

A.S. No. 6 of 20215

On the file of Prl.District Judge, Adilabad representatives and successors-in-interest from interfering with the possession and enjoyment of the plaintiff over the suit schedule property.

8) Aggrieved by the said judgment and decree, the appellants/defendants preferred this appeal on the following grounds:-

i) The judgment and decree under appeal is contrary to law, justice and facts of the case.

ii) The trial court failed to appreciate the evidence on record and came to erroneous conclusion.

iii) The trial court failed to see the actual facts of the case and discussed the facts which are not relevant to the issues.

iv) The trial court failed to appreciate that, the appellants are in possession of the suit land since more than 40 years and constructed a house bearing Municipal No.4-5-25 and in possession of the same and the trial court failed to appreciate the documents under Exs.B1 to B6.

v) The trial court failed to appreciate that, there was no sub division of Sy.No.33/A/1 measuring Ac.1-90cents.

Hence, prayed to allow the appeal by setting aside the judgment and decree passed by the trial Court.

9) No additional evidence either oral or documentary is adduced by the parties on either side in this appeal suit.

A.S. No. 6 of 20216

On the file of Prl.District Judge, Adilabad

10) Heard both sides.

11) Now the points that arise for consideration in deciding the appeal are:

1) Whether the impugned judgment and decree of trial Court is unsustainable and requires any interference by this Court while sitting in appeal, if so, with what observations?

2) To what result?

POINT NO. 1:

12) Since the appellate court is the last court of facts, this court intends to re-examine the evidence adduced by both the parties.

13) The evidence of the plaintiff is that, he is the absolute owner of the suit schedule property and is in continuous possession by virtue of inheritance from his father, who in turn acquired the said property in the family partition and the defendants having no right or interest in the suit schedule property encroached upon with a malafide intention to grab the same, and he succeeded to defeat their plan and therefore, the defendants

A.S. No. 6 of 20217

On the file of Prl.District Judge, Adilabad left the premises threatening him with dire consequences and as such, having left with no other option, approached the court for redressal.

14) PW1 in support of his case, relied upon Ex.A1 to A3/certified copies of the pahanies for the years 2010-11 to 2012-13. As seen from the said exhibits, the name of the plaintiff and his father is reflected in the pattedar as well as possessor column in Exs.A1 to A3.

15) Coming to the cross examination, he admitted that he did not file any document to show that his grandfather was the pattedar of the land in

Sy.No.33. The remaining cross examination is nothing but giving suggestions to PW1 that, they have fabricated Exs.A1 to A3 to prove their possession though the documents of the defendants show the possession of ginning factory for the said years.

16) The evidence of PW2 who is acquainted with both the parties is that, the defendants having no right or possession over the suit schedule property interfered with the possession of the plaintiff to grab his property.

A.S. No. 6 of 20218

On the file of Prl.District Judge, Adilabad

Coming to the cross examination, he deposed that, there is no ginning factory in the suit locality but, there is a railway track but he do not know whether some of the suit property was acquired for railway track. It was suggested to him that, his grandfather has sold away his land to Gandhe

Yadav Rao who in turn established a ginning factory after his purchase.

He stated that, the plaintiff is residing at Chota Talab but he got a house at suit property. Further, the brothers of the defendant are also residing in the nearby suit locality. He denied his knowledge about the total extent of land in Sy.No.33 and when it was sub divided.

17) PW3 also supported the evidence of Pws 1 and 2 and coming to the cross examination, he admitted that, plaintiff is his close friend and the defendants are the relatives of the plaintiff.

18) The evidence of DW1 is that, they are in possession of suit land since more than 40 years by paying tax and constructing a house and the pahanies filed by the plaintiff are fabricated for the purpose of this case.

DW1 relied upon Exs.B1 to B5 in support of their defence.

A.S. No. 6 of 20219

On the file of Prl.District Judge, Adilabad

19) Ex.B1 is the Meeseva pahani for the fasli year 1420 (2010-2011) which shows the name of Shaik Mohammed and Fakir Mohammed as pattedar and ginning factory as possessor in Sy.No.33/A the total extent being Ac.2- 2800.

Ex.B2 is the Meeseva pahani for the fasli year 1420 (2010-2011) which shows the name of Shaik Mohammed and Fakir Mohammed as pattedar and ginning factory as possessor in Sy.No.33/AA/1 the total extent being

Ac.1-9000.

Ex.B3 is the Meeseva pahani for the fasli year 1421 (2011-2012) which shows the name of Shaik Mohammed and Fakir Mohammed as pattedar and ginning factory as possessor in Sy.No.33/A the total extent being Ac.2- 2800.

Ex.B4 is the Meeseva pahani for the fasli year 1421 (2011-2012) which shows the name of Shaik Mohammed and Fakir Mohammed as pattedar and ginning factory as possessor in Sy.No.33/AA/1 the total extent being

Ac.1-9000.

Ex.B5 is the Meeseva pahani for the fasli year 1422 (2012-2013) which shows the name of Shaik Mohammed and Fakir Mohammed as pattedar

A.S. No. 6 of 202110

On the file of Prl.District Judge, Adilabad and ginning factory as possessor in Sy.No.33/A the total extent being Ac.2- 2800.

Ex.B6 is the certificate issued by the Adilabad Municipality certifying that, H.No.4-5-25 situated at Bhukthapur Adilabad is in the name of Gulam

Amjad from 01.10.1998 to 05.06.2007 and later was mutated in the name of his wife Bilquis Begum vide Proc.No.F1/1674/2007 dated 06.06.2007.

20) Coming to the cross examination, this witness clarified that, the

Sy.No.33 is sub divided into four parts and the ginning mill is located out of the suit schedule property and the suit land pertains to Sy.No.33/A/1 whereas he filed the documents under Exs.B1 to B5 pertaining to

Sy.No.33/AA/1. He also admitted that, succession opens on the death of the individual under Muslim Law.

21) On scrutiny of the evidence adduced by both the parties and the documents relied upon, it is crystal clear that, the documents relied upon by the plaintiff pertain to the suit schedule property in Sy.No.33/A/1 and the documents filed by the defendants pertains to Sy.No.33/AA/1.

A.S. No. 6 of 202111

On the file of Prl.District Judge, Adilabad

It is evident from the documents filed by plaintiff that, he is not only pattedar but also the possessor of the schedule property.

22) The admission of DW1 that, the land in Sy.No.33 was divided into four sub divisions and the documents filed by him does not pertain to the suit land makes it clear that, the defendants have no right or interest in the suit schedule property and have unnecessarily interfered with the possession of the plaintiff.

23) Though DW1 filed Ex.B6 to show his ownership over the house bearing No.4-5-25, there is no clarity as to the Survey number in which the said house was constructed. The defendant ought to have examined the municipal officials to clarify about the division of the Sy.No.33 and the exact location of their house.

24) No efforts seen from the defendants to disprove the case of the plaintiff by resorting to atleast appoint an advocate commissioner to prove the physical features and boundaries to the property in question.

A.S. No. 6 of 202112

On the file of Prl.District Judge, Adilabad

25) The trial court rightly appreciated the evidence adduced by both the parties and granted perpetual injunction in favour of the plaintiff which cannot be interfered in any manner since it holds good. Point No.1 is accordingly answered.

26) POINT NO.2:

IN THE RESULT, this appeal is dismissed confirming the Judgment and Decree passed by the learned Senior Civil Judge, Adilabad in OS No.58 of 2013 on 21.12.2020. No costs.

Typed by the stenographer to my dictation and after correction

pronounced by me in open court this the 18th day of April 2023.

PRL. DISTRICT JUDGE

ADILABAD

IN THE COURT OF THE PRINCIPAL SESSIONS JUDGE AT ADILABAD.

Present: - Smt. M. R. Sunitha,

Principal Sessions Judge, Adilabad.

WEDNESDAY, THIS THE 29 TH DAY OF MARCH, 2023

S.C.NO.155 OF 2022

(On committal by the Judicial First Class Magistrate, Boath vide PRC No.7 of 2022 in Cr.No.92 of 2021 of PS Neradigonda)

Name of the Complainant :: State of Telangana through Circle Inspector of Police, Ichoda.

Name of the Accused ::

Syed Isakuddin @ Ishaq S/o Riazuddin, aged 34 years, Caste: Muslim, Occ: Madina medical business at Waddur village, R/o H.No.3-61, Waddur village of Neradigonda mandal.

Offence under section :: 304-II and 323 IPC

Plea of the accused :: Not guilty

Finding :: Not Guilty

Sentence or Order ::

In the result, accused is found not guilty for the offences punishable under Sections 304-II and 323 IPC and accordingly, he si acquitted under Section 235(1) of Cr.P.C., for the said charges. The bail bonds of the accused shall stand cancelled. Unmarked case property, if any, is ordered to be destroyed after expiry of appeal time. MO.1 shall be destroyed after expiry of appeal time.

Sri Sanjay Kumar Vairagare, Name of the counsel for :: prosecution Public Prosecutor

Name of the counsel for :: Sri A.Amarender Reddy, Advocate

SC No.155 of 2022

On the file of Prl. Sessions Judge2 Adilabad

This case is coming on before me for final hearing on 29.3.2023 in the presence of Sri Sanjay Kumar Vairagare, Public Prosecutor for the State and Sri A.Amarender Reddy, Advocate for accused and on hearing both sides and the matter having stood over for consideration till this day, this court made the following:

J U D G M E N T

1) The Circle Inspector of Police, Ichoda has filed charge sheet against the accused in Cr.No.92 of 2021 of PS Neradigonda for the offences punishable under Sections 304-II and 323 IPC.

2) The facts of the prosecution case in nutshell are as follows:

The Pws.1 and 6 are the sons of the deceased and they belongs to

Waddur village. Accused also hails from Waddur village. On 17.11.2021 at 1930 hours the deceased along with his grandson/PW2 went to Madina shop of the accused and asked for cough tablets, upon that the accused gave

Sinarest tablet to the deceased which is of expiry date and on that the deceased defame the accused in the presence of customers. The accused disgusted by the words of deceased and caught hold the neck of the deceased by pressing and forcibly pushed back side. As a result of which the deceased fell down on the cupboard, attached to the wall of the medical shop, received internal injuries and died on the spot. Accused also slapped PW2. Thus, the accused has committed the offences under sections 304-II and 323 IPC. Thereafter, the

SC No.155 of 2022

On the file of Prl. Sessions Judge3 Adilabad investigating officer investigated into the matter and on completed of entire investigation and on receipt of all documents, he filed charge sheet.

3) The learned Judicial First Class Magistrate, Boath has taken the charge sheet on file for the offences punishable under Sections 304-II and 323 IPC against the accused and on appearance of accused and after completing formalities required under sections 207 and 209 CrPC, the learned Magistrate has committed the case to the Court of Sessions, Adilabad division, where, it was numbered as SC 155 of 2022.

4) On appearance of accused and on hearing both sides, this court framed charges for the offences under Sections 304-II and 323 IPC against the accused, read over and explained the contents of the same to him in his vernacular language, for which he pleaded not guilty and claimed to be tried.

5) In order to bring home the guilt of accused, the prosecution examined

PWs.1 to 11 and marked Exs.P.1 to P.17 and MO.1.

6) After closure of prosecution evidence, the accused is examined under

Section 313 CrPC with regard to the material circumstances and incriminating evidence appearing against him, but he denied the same. The accused reported no defence evidence on his behalf.

7) Heard both sides.

SC No.155 of 2022

On the file of Prl. Sessions Judge4 Adilabad

8) The points for determination are:

1) Whether the prosecution has proved the guilt of accused for the offences punishable under Sections 304-II and 323

IPC beyond all or any reasonable doubt?

2) To what order?

POINTS NO.1 AND 2:

9)In order to prove the guilt of the accused, the prosecution, in all, has examined 11 witnesses. Among them, Pws.1 and 6 are the sons of the deceased. Pws.3 and 5 are eye witnesses to the incident, PW4 is the person who assisted PW1 in shifting the dead body of the deceased, PW2 is the grandson of the deceased and eye witness, PW7 is the panch witness for CDF,

Pws.8 and 9 are the panch witnesses for confession and seizure panchanama,

PW10 is the doctor and PW11 is the investigating officer.

10. The evidence of the prosecution witnesses is as follows:

PW1 who is the complainant and son of the deceased has deposed that his father died one year three months back in front of a medical shop and he did not know how his father died. He deposed that he do not know who gave information to the police and that police obtained his signatures on white papers. He deposed that accused is no way connected with the said offence.

SC No.155 of 2022

On the file of Prl. Sessions Judge5 Adilabad

PW1 turned hostile and did not support the prosecution case. He denied to have stated to the police as in Ex.P2.

11. PW2 who is the grandson of the deceased and eye witness to the incident and important witness in this case has deposed that he do not know his grandfather died and he do not have any suspicion over the death of my deceased grandfather. PW2 also turned hostile and did not support the prosecution case. He denied to have stated to the police as in Ex.P3.

12. Pws.3 and 5 are the eye witnesses to the incident who deposed that they do not know anything about this case and how the deceased died. Both Pws.3 and 5 also turned hostile and did not support the prosecution case. They denied to have stated to the police as in Ex.P4 and P6 respectively.

13. PW4 is the person who assisted the PW1 in shifting the dead body of the deceased also not supported the prosecution case stating that he do not know how and where the deceased died and he do not know the facts of the case.

He denied to have stated to the police as in Ex.P5.

14. PW6 is the son of the deceased also turned hostile and did not support the prosecution case. He denied to have stated to the police as in Ex.P7.

SC No.155 of 2022

On the file of Prl. Sessions Judge6 Adilabad

15. PW7 is the panch witness for CDF who has deposed that on 18.11.2021 he along with LW9 were present at the time of police conducting inquest over the dead body of the deceased. Further he deposed that on the same day police also conducted CDF panchanama and drafted rough sketch under Ex.P9 and later police also conducted scene of offence and seizure panchanama and seized MO.1/wooden panel of cupboard and they signed on all the panchanamas. But during his cross examination PW7 admitted that MO.1 is not the cupboard which was seized in their presence. Therefore, there is discrepancy in the evidence of PW7 with regard to the MO.1. Hence, his evidence is not helpful to the prosecution case.

16. Pws.8 and 9 are the panch witnesses for confession panchanama of the accused. They deposed that they have not elxamined the accused and police also not enquired him in their presence and that accused did not reveal anything to them at that time and they signed on some papers at the instance of police. Both Pws.8 and 9 have turned hostile and did not support the prosecution case.

17. PW10 is the doctor who has deposed with regard to conducting of PME over the dead body of the deceased and issuance of PME report under Ex.P14.

SC No.155 of 2022

On the file of Prl. Sessions Judge7 Adilabad

He deposed that the cause of death is due to throttling caused cardio respiratory arrest and death.

18. PW11 is the investigating officer who has deposed with regarding to the investigation done by him.

19. In this case the death of the deceased is proved by the evidence of PW10 and PME report under Ex.P14. But, here in this case how the deceased died and who is responsible is not established by the prosecution. The material witnesses i.e., Pws.1 to 6 to the incident have turned hostile and did not support the prosecution case. Even the panch witnesses for confession also turned hostile and did not support the prosecution case. Thus, there is no material to connect the accused with this crime.

20. Therefore, in view of the above detailed discussion coupled with reasons stated supra and where the material witnesses i.e., Pws.1 to 6 have turned hostile and did not supported the prosecution case, this Court is of the considered view that the prosecution has failed to prove the guilt of the accused for the offence punishable under Sections 304-II and 323 IPC with which the accused is charged, beyond all or any reasonable doubt.

Consequently, this Court finds the accused is not guilty for the charges leveled

SC No.155 of 2022

On the file of Prl. Sessions Judge8 Adilabad against him and accordingly holds that the accused is entitled for acquittal.

Point No.1 is answered accordingly in favour of the accused No.1 and 2 and against the prosecution.

21) In the result, accused is found not guilty for the offences punishable under Sections 304-II and 323 IPC and accordingly, he si acquitted under

Section 235(1) of Cr.P.C., for the said charges. The bail bonds of the accused shall stand cancelled. Unmarked case property, if any, is ordered to be destroyed after expiry of appeal time. MO.1 shall be destroyed after expiry of appeal time.

Typed by the stenographer to my dictation and after correction

pronounced by me in open court this the 29th day of March, 2023.

PRL.SESSIONS JUDGE,

ADILABAD.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION FOR DEFENCE

PW.1 Shaik Ishrath PW.2 Shaik Rehan – None -- PW.3 Ismail Khan PW.4 Sameer Khan PW.5 Shaik Arif PW.6 Shaik Fariyad PW.7 Eddam Mallareddy PW.8 Danger Devsingh

SC No.155 of 2022

On the file of Prl. Sessions Judge9 Adilabad

PW.9 Goti Moresingh PW.10 Dr.Rajender Prasad PW.11 G.Vijay/IO

EXHIBITS MARKED

FOR PROSECUTION:

Ex.P.1 Signature of PW1 on complaint Ex.P.2 161 CrPC statement of PW1 Ex.P.3 164 CrPC statement of PW2 Ex.P.4 161 CrPC statement of PW3 Ex.P.5 161 CrPC statement of PW4 Ex.P.6 161 CrPC statement of PW5 Ex.P.7 161 CrPC statement of PW6 Ex.P.8 Inquest panchanama by PW7 Ex.P.9 1st CDF and rough sketch Ex.P.10 Scene and seizure panchanama Ex.P.11 2nd CDF and rough sketch Ex.P.12Signature of PW8 on confession panchanama Ex.P.13Signature of PW9 on confession panchanama Ex.P.14 PME report Ex.P.15 Complaint given by PW1 to police

Ex.P.16First Information Report

Ex.P.17Confession panchanama

FOR DEFENCE: – Nil --

MOs MARKED

MO.1 Cupboard panel

PRL. SESSIONS JUDGE,

ADILABAD.