Sri M.Sai Kumar

-1-

O.S.No.78 of 2021 of SCJ, Narsampet.

IN THE COURT OF SENIOR CIVIL JUDGE :: NARSAMPET.

Present: - Sri M.Sai Kumar,

Senior Civil Judge,

Warangal. FAC Senior Civil Judge, Narsampet.

Friday, this the 14 th day of June, 2024

O.S.No. 78 of 2021

Between:

Gottimukkula Sravanthi, W/o.Sravan Kumar, Aged: 29 years, Occ: Business, R/o.H.No.4-49, Nallabelly Village and Mandal Warangal Rural District, Telangana.

...Plaintiff

And

1. Nalla Sambaiah, S/o.Ilaiah, Aged about: 51 years, Occ: Agriculture, R/o.Chandraiahpally Village of Duggondi Mandal, Warangal Rural District, Telangana.

2. Nalla Swaroopa, W/o.Sambaiah, Aged about: years, Occ: Agriculture, R/o.Chandraiahpally Village of Duggondi Mandal, Warangal Rural District, Telangana.

3. Nalla Nagaraju, S/o.Sambaiah, Aged about: 35 years, Occ: Agriculture, R/o.Chandraiahpally Village of Duggondi Mandal, Warangal Rural District, Telangana.

...Defendants

This suit is coming before me on 19.04.2024for final hearing in the presence ofSri R.Laxminarayana, Advocate for the plaintiff, and Sri G.Venkateshwarlu, Advocate for the defendants No. 1 to 3 and upon perusing the entire material papers on record and the matter 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 for specific performance of contract directing the defendants to execute regular registered sale deed of the suit schedule property i.e., Agricultural land to an extent of Ac.0-23 Gts in Sy.No.103/2/A/2, situated at

Mallampally Village of Duggondi Mandal, Warangal Rural District, Telangana,

India, and land to an extent of Ac.01-09 Guntas in Sy.No.30/1/3, and to an

O.S.No.78 of 2021 of SCJ, Narsampet.

extent of Ac.0-20 Guntas in Sy.No.30/4/1, situated at Lenkalapally Village of

Nallabelly Mandal, Warangal Rural District, Telangana, total ad-measuring to an extent of Ac.02-12 Guntas in single compact block boundaries within the following boundaries: EAST: Agricultural land of Macherla Rajender, WEST:

Agricultural land of Singiredy Ramana, NORTH: SRSP Canal, SOUTH:

Agricultural land of Macherla Ramesh and Kamidi Chanderreddy by receiving the balance sale consideration by measuring the property and also injunction restraining the defendants from alienating the suit schedule property to 3rd parties.

2.The brief facts of the plaint are that, 1st defendant is holding suit schedule property as he was in need of money offered to sell the same, which plaintiff was accepted by expressing his willingness to purchase the same. On 09-12- 2020 after negotiations the rate was fixed @ Rs.20,50,000/- per acre and on the same day plaintiff paid an amount of Rs.2,00,000/- to defendant and on 11-12- 2020 an amount of Rs.8,00,000/- and on 29-12-2020 an amount of

Rs.10,00,000/- was received by the defendant totaling Rs.20,00,000/- in the presence of witness. As per the agreement of sale the sale should be concluded within 60 days but there was a oral understanding between parties that the defendant should measure the land and receive the balance sale consideration and execute the registered sale deed, but, the defendant postponed the same.

Plaintiff is always ready to pay the balance sale consideration to the defendant as per the agreement of sale dated 29-12-2020 but the defendant intentionally did not came forward to measure the suit schedule property and to receive the balance sale consideration for executing the regular registered sale deed in favour of plaintiff and thereby awaited to comply with the transactions of the agreement. The defendant successfully completed the period fixed i.e., 60 days though plaintiff was ready to perform his obligations. As the things stood thus plaintiff reported the matter to police Nallabelly but, they advised to settle the matter amicably before the elders as the matters pertains to civil in nature. As such plaintiff approached the elders and conducted panchayath in the presence of Sarpanch of Nallabelly and Chandraiahpally and others, wherein the elders

O.S.No.78 of 2021 of SCJ, Narsampet.

find fault with defendant and advised him to measure the land and after receiving the balance sale consideration as per the measurements, execute regular registered sale deed in favour of plaintiff, but, the defendant requested time to perform his part of duty as per the agreement and delivered the physical possession o suit schedule property to plaintiff. Later the defendant did not turn up to perform his part of obligations as such plaintiff got issued legal notice calling the defendant to receive the same balance sale consideration and measuring the land and execute regular registered sale deed within seven (07) days, but the defendant managing the postal authorities and got returned the same. However, suppressing the defendant got issued false legal notice on 27-04-2021 with false allegations and the plaintiff got issued suitable reply legal notice.

3.The defendant having bound to receive balance sale consideration by measuring the suit schedule property and to execute regular register sale deed but with the malafide and some ulterior motive trying to alienate the same to some other 3rd parties equally and unlawfully. In spite of repeated demands of the plaintiff the defendant failed to perform his part of trial as such plaintiff was considered to file the present suit. Subsequent to filing of the suit plaintiff got amended the suit by following pleadings: a) The plaintiff submits that as he filed the above suit against the defendant No.1 for seeking Specific performance of

Contract in respect of the suit schedule property, and he also submitted an interlocutory application vide I.A.No.03 of 2021 wherein he sought the indulgence of the Hon'ble Court to restrain the defendant from alienating or creating any charge as against suit schedule property, and having considered the prima facie case the Hon'ble Court was pleased to grant status quo order on 24-05-2021 the said order was served on the defendant No.1, and later he got appeared before the Hon'ble Court and filed Vakalathnama on his behalf, but he fails to file the Written Statement within stipulated time therefore he was remained exparte and the petition filed by the plaintiff in I.A. No. 03 of 2021 was made absolute. The plaintiff contend that the defendant No.1 so far not challenged the orders passed by the Hon'ble Court as such the same has

O.S.No.78 of 2021 of SCJ, Narsampet.

become final. Further, plaintiff contend that on advice he obtained the on-line encumbrances certificate in respect of the subject matter of the suit on 20-09-2022 and after verification of said E.C he was shocked and surprise to notice that the defendant No.1 has deliberately disobeyed the orders of the

Court and executed a registered gift settlement feed in favour of his son and wife namely Nalla Ngaraju and Nila Swaroopa, knowing well about the pendency of the suit as well as the orders passed by the Court, as such plaintiff herewith filling E.C and copies of gift settlement deeds.

4.The plaintiff further contend that as he was informed that the defendant

No.1 has no right to made such gift in favour of his son and wife since the matter is sub-judice before the Court, and since the defendant No.1 has gifted the property to the defendants No.2 & 3 during the pendency of the suit, as such they are necessary parties to the suit therefore they are added as the defendants Nos. 2 & 3 in the above suit. Hence, defendants No.2 & 3 are under legal as well as moral obligation to execute the registered sale deed in favour of the plaintiff along with the defendant No.1 in respect of the suit schedule property. (Added as per the orders in I.A.No 21 of 2023 Dated: 19-04-2023).

Hence, prayed for decreeing the same.

5.On the other hand defendant No.1 filed written statement denying the entire contents of plaint in toto except ownership over the suit schedule property. The defendant further furnished new facts that is the owner and possessor of total 04 acres out of which the defendant offered to sell Acre 01-32

Guntas of land in Sy.No.30/1/3 situated at Lenkalapally Village of Nallabelly

Mandal, Warangal District for his family necessities which was purchased by the defendant and the remaining agreement was acquired by him from his ancestors. Plaintiff came forward and agreed to purchase the same @

Rs.20,50,000/- per acre to an extent of Ac.01-32 Gts as stated supra. On 09-12- 2020 the defendant No.1 received part of sale consideration of an amount of

Rs.2,00,000/- through Phonepe from plaintiff and passed a receipt. Further, plaintiff agreed to pay an amount of Rs.8,00,000/- on the next day i.e., on 10-

O.S.No.78 of 2021 of SCJ, Narsampet.

12-2020 and remaining balance sale consideration of RS.26,90,000/- in two (02) installments agreeing to measurements. As per the earlier receipt dated 09-12-2020 plaintiff has to pay Rs.8,00,000/- on 10-12-2020, but the plaintiff came to defendant on 11-12-2020 and entered into a agreement of sale in respect of aforesaid agreement of Ac.01-32 Gts in writing and paid an amount of Rs.10,00,000/- by saying that she has to pay the amount which was written in the agreement through Phonepe like earlier payments, plaintiff further agreed to pay the balance sale consideration in two (02) installments to be paid on 11-01- 2021 and next installment agreed to be paid at the time of measuring the land.

After completion of sale process, the mutation of the land has to mutate in the revenue records, believing the same the defendant has signed on agreement of sale dated 11-12-2020 without taking an amount of Rs.10,00,000/- but the plaintiff failed to pay the said amount either by Phonepe or cash to the defendant. Plaintiff has cheated the defendant by obtaining the signatures on the sale agreement without paying any amounts and when the same was demanded to return the agreement of sale in the presence of elders plaintiff has to return the agreement of sale to the defendant but promised to arrange the total sale consideration amounts at regular sale deed within 70 days from the date of sale agreement dated 11-12-2020.

6.Further defendant no.1 contend that, plaintiff have to pay balance sale consideration by 21-02-2021 including Rs.10,00,000/- as stated supra but the plaintiff failed to keep up her promise and played fraud on defendant stating that he has to sell Ac.2-12 Gts in single block agricultural land for construction of rice mill. Now the defendant is not ready to sell any single gunta of land to any one.

Despite granting one month of time for payment of balance sale consideration did not come forward to perform contract and defendant several times approached the plaintiff requesting to pay the balance sale consideration of

Rs.34,90,000/- to the land to an extent of Ac.1-32 Gts as per the agreement

dated 09-12-2020 by showing his readiness to perform his part of contract, but

plaintiff threatened the defendant by calling police Nallabelly vexed with the attitude of the plaintiff and defendant got issued legal notice dated 06-04-2021

O.S.No.78 of 2021 of SCJ, Narsampet.

intimating the plaintiff that the time given by the defendant is over and the plaintiff played fraud to grab the land of defendant. Plaintiff had no means to pay the balance sale consideration and failed to perform her part of contract to advance payment of Rs.2,00,000/- was forfeited and the plaintiff is liable to pay damages as the agreement of sale dated 11-12-2020 stands cancel. Again on 27-04-2021 defendant got issued legal notice to the same address on which plaintiff received and got issued reply with all false allegations. Further defendant no.1 contend that, plaintiff fraudulently, purposefully created false document with rank forged signature of the defendant on alleged agreement of sale dated 29-12-2020 and the defendant intend to take steps to send the document to hand writing expert opinion. Plaintiff having knowledge, created agreement of sale dated 29-12-2020 between 1st and 2nd legal notices got issued by defendant, suppressing the real facts, since agreement of sale is rank forged one and the alleged consideration is false. The defendant further contended that plaintiff filed suit to harass the defendant and to grab his suit property with the active collusion of police Nallabelly. Plaintiff got registered a false criminal case against the defendant and his family members, plaintiff taking advantage of innocence and illiteracy of defendant created false story to grab the suit schedule property. Plaintiff never paid any amount of

Rs.20,00,000/- as part of sale consideration. As such the defendant is not liable to perform his part of contract and the claim of the plaintiff is false. Hence, prayed for dismissal of the suit.

7.The defendants No.2 and 3 filed adoption memo adopting the written statement of defendant No.1.

Basing on the rival contentions of both sides the following issues are framed for trial.

1) Whether plaintiff is entitled for specific performance of contract dated 29- 12-2020 from defendant?

2) If so to what extent?

O.S.No.78 of 2021 of SCJ, Narsampet.

At trial plaintiff got examined as PW1 and got marked Exs.A1 to A6.

Plaintiff examined PW2 as her acquainted person. The defendant No.1 examined himself as DW1 and no documents are exhibited and no further evidence was laid.

Heard both sides and perused the record.

ISSUES No 1 AND 2:

8.PW1 reiterated the entire contents of the plaint in her chief examination affidavit except that the documents dated 09-12-2020 and 11-12-2020 were return to defendant No.1 through elder by name Bathini Mallaiah and the same was not mentioned in her chief affidavit. Though defendants in their written statement denied the entire contents of plaint in toto, but they did not denied specifically regarding handing over documents dated 09-12-2020 and 11-12- 2020 to defendant No.1 through Bathini Mallaiah while executing Ex.A1 as it is mandatory as per Order VIII Rule 5 of Civil Procedure Code. Adding to it though during cross examination of PW1 it was brought on record that she did not mentioned in her chief affidavit about handing over the documents dated 09- 12-2020 and 11-12-2020 to defendant No.1 through Bathini Mallaiah but it was not denied by giving any suggestion to PW1 that no such documents were handed over to defendant No.1 through said Mallaiah as such it appears to be deemed admission on the part of defendants. in-furtherance of it, plaintiff examined PW2 to substantiate that the documents dated 09-12-2020 and 11- 12-2020 were handed over to defendant No.1 through PW2 who is none other than the said Bathini Mallaiah. During cross examination of PW2 the said contention of handing over of documents dated 09-12-2020 and 11-12-2020 were denied by giving suggestion, but PW2 was confronted with xerox copies of documents dated 09-12-2020 and 11-12-2020, on seeing the said documents

PW2 categorically admitted that he signed as one of the witness to document

dated 09-12-2020 but not the witness on document dated 11-12-2020. Had it

been that, no any such documents dated 09-12-2020 and 11-12-2020 were in existence, the copies of said documents could have been put to confrontation to

O.S.No.78 of 2021 of SCJ, Narsampet.

PW2. It is the prime contention of the plaintiff that through the said documents, plaintiff had paid an amount of Rs.10,00,000/- but the defendants denied about payment of Rs.8,00,000/- under document dated 11-12-2020. Despite PW2 was cross examined regarding not handed over documents dated 09-12-2020 and 11-12-2020 to defendant No.1 through him but DW1 did not whispered anything about the same in his evidence affidavit. Thus in view of not mentioning the same, adverse inference can be drawn against defendant No.1 that such document dated 09-12-2020 and 11-12-2020 were handed over to defendant

No.1 through PW2.

9.As seen from the averments of both sides, though defendant No.1 in his written statement initially denied about receipt of Rs.2,00,000/- through

Phonepe on 09-12-2020 to any subsequent pleadings he admitted about payment of Rs.2,00,000/- through Phonepe. It is not out of place to mention that

PW1 was cross examined regarding payment of Rs.2,00,000/- on 09-12-2020 through Phonepe by denying no such payment was made through Phonepe as the limit of UPI payment was only Rs.1,00,000/- per day and though PW1 deposed that her UPI amount is having limit of Rs.5,00,000/- per day, no document was filed to substantiate the version of plaintiff that payment of

Rs.2,00,000/- was made either to defendant No.1 or to the phone number which was furnished by defendant No.1 but in view of the said admission of defendant

No.1 in writing and so also in his evidence of DW1, this Court feels that admission by way of pleadings are having higher pedestal than during cross examination. As stated supra, DW1 through his written statement has admitted about receipt of payment of Rs.2,00,000/- from plaintiff through Phonepe and also admitted the same in the evidence affidavit clearly shows the receipt of

Rs.2,00,000/- and the same is sufficient for believing that it is a admission as required U/Sec.58 of Indian Evidence Act, as such the suggestion to PW1 and non filing of documents showing the payment of Rs.2,00,000/- through Phonepe and limit of UPI payment of Rs.5,00,000/- did not have any effect on the plaintiff case in view of admission of DW1 as discussed supra.

O.S.No.78 of 2021 of SCJ, Narsampet.

10.It is the specific defense of the defendants that, Ex.A1 is the rank forged document and defendant No.1 has never executed any such document of agreement of sale nor received any amount mentioned in it i.e., Rs.20,00,000/-.

As stated supra it is the case of the plaintiff while executing Ex.A1 initially document which was written on white paper dated 09-12-2020 and subsequent payment of Rs.8,00,000/- through document dated 11-12-2020 were handed over to DW1 through PW2 and the same was not mentioned in Ex.A1 though create suspicion on Ex.A1 but mere denial and contending that it is forged document, defendants did not take any steps for sending the said document of suit schedule property to no where signatures of DW1 on Ex.A1 are forged one or not. It is settled law that the burden of proving allegations of forgery is on the person who alleges it and the same has been held by the Hon’ble Karnataka

High Court in the case of Sri Bhasker S. Kattemar Son of ... vs Sri P.E.

Hameed Son Of P.S. Ibrahim reported in 2007 (4) KarLJ 56 at para No.12 as follows:

“The allegation of rank forgery, collusion in knocking off the property, etc. are made in the written statement. But, surprisingly no proceedings were initiated at any point of time as against the plaintiff either before or after filing of the suit. Learned trial judge noticing the conduct of the defendant has rightly ruled against the defendant in paragraph 38 of the judgment in question. We cannot but notice that the defendant is a practising lawyer. If there is really any forgery, he would have certainly taken action against the plaintiff. Non-taking of any action by the defendant in the case on hand would go to against the defence placed by the defendant appellant.”

11. In the present case in hand as stated supra, allegation of forgery of signature of defendant no.1 on Ex.A1 is on defendants, but they did not take any steps to prove the same by filling the admitted signature, contemporary signature of defendant no.1 for comparing the same with signature on Ex.A1 to

FSL, Hyderabad/ Warangal for expert opinion. As such in the absence of any such evidence on record, this Court is not inclined to believe on the version of defendants. In view of the above payment, as it is settled law that defendants

O.S.No.78 of 2021 of SCJ, Narsampet.

failed to establish that Ex.A1 is a forged document and so also did not place any reliable evidence on record either oral or documentary rebutting version of plaintiff regarding payments made either under Ex.A1 coupled with documents

dated 09-12-2020 and 11-12-2020.

12.Further PW1 was cross examined regarding the capacity of paying the balance sale consideration by giving suggestion that her bank account does not disclose the amount for paying the balance sale consideration but PW1 has categorically denied such suggestion and to substantiate her financial capacity in paying the balance sale consideration, plaintiff filed her bank statement of

HDFC bank which shows sufficient amount of more than Rs.10,00,000/- which is appears to be the balance sale consideration to be paid as per the version of plaintiff as such disputing the financial capacity of plaintiff in paying the balance sale consideration during the cross examination of PW1 is not tenable under law.

13.Though, PWs 1 and 2 were cross examined regarding execution of

Ex.A1 by DW1 that who brought Non-Judicial Stamp paper of Rs.100/- and where, and where it was got typed and where the signatures of defendant No.1 was obtained on the same day. In that regard PWs 1 and 2 categorically deposed giving clarification that Non-Judicial Stamp paper of Rs.100/- under

Ex.A1 was purchased at Hanumakonda and the same was got typed at

Hanumakonda, subsequently on the same day all i.e., plaintiff, defendant No.1 and witness were signed on it at once. This evidence of PW1 and PW2 is sufficient to disbelieve that Ex.A1 is a forged document as the evidence of PWs 1 and 2 in that regard was not denied by defendants by giving any suggestion to that extent.

14.Further, during cross examination of PW1 defendants trying to bring on record that payment made to defendant was shown in income tax returns of plaintiff and plaintiff categorically admitted that she has shown such payment in her income tax returns but she did not filed any copy of such income tax returns

before the Court. Despite giving such answer, defendants did not disputed that

O.S.No.78 of 2021 of SCJ, Narsampet.

no such amount was shown in the income tax returns of plaintiff as such she has not filed copy of the same before the Court. In view of not disputing that plaintiff has not shown payment of Rs.20,00,000/- to defendant No.1 for purchasing the property under Ex.A1 would itself sufficient that plaintiff has shown the payment defendant in her income tax returns.

15.As seen from the record, subsequent to the filing of the suit defendant

No.1 executed gift deed in favour of defendants 2 and 3 alienating the suit schedule property despite there exists order status quo vide I.A.No.03 of 2021

dated 24-05-2021 as such the alienation made by defendant No.1 in favour of

defendants No.2 and 3 by virtue of registered gift settlement deed is put by the provision of mis-pendency under Sec.52 of Transfer of Property Act and the same is not valid under law as it is executed against the grounds of the Court as stated supra.

16.As stated supra though defendants in their written statement disputed the receipt of payment of Rs.8,00,000/- on 11-12-2020 and Rs.10,00,000/- on 29- 12-2020 under Ex.A1, no steps were taken by giving any police complainant that regarding forging of Ex.A1 and making false allegations of paying

Rs.8,00,000/- and Rs.10,00,000/- on 11-12-2020 and 29-12-2020 under Ex.A1 respectively. Further, despite stating names of several witness by PWs 1 and 2 in their evidence that both sides Sarpachs of their respective villages and other witness namely PW2, Shekhar, Ch.Srihar, M.Thirupathi, M.Rajanna and

U.Rajanna, none of them were examined by the defendants to substantiate the defense taken by them as such in the absence of any collaborative piece of evidence separating the version of defendants and as plaintiff established her version with cogent documentary and oral evidence which defendants failed to rebutted, as such this Court hold that plaintiff has proved her case, consequently this Court feels that plaintiff is entitled for the relief as prayed.

Accordingly, issues are answered.

In the result, the suit of the plaintiff is decreed with costs granting the relief of specific performance of contract directing the defendants to execute

O.S.No.78 of 2021 of SCJ, Narsampet.

regular registered sale deed by receiving the balance sale consideration on measuring the suit schedule property from plaintiff and if defendants failed to execute the regular registered sale deed, the plaintiff shall deposit the balance sale consideration before the Court within 30 days from today and got it executed through Court. Further, the defendants are restrained from alienating the suit schedule property through third parties.

(Typed to my dictation, corrected and pronounced by me in the open court, on this the 14 th day of June, 2024).

Sd/-

SENIOR CIVIL JUDGE,

WARANGAL

FAC SENIOR CIVIL JUDGE,

NARSAMPET.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF: FOR DEFENDANT:

PW1 : Gottimukkula Sravanthi DW1 : Nalla Sambaiah PW2 : Bathini Mallaiah Yadav

EXHIBITS MARKED

FOR PLAINTIFF:

Ex.A1 : Original Agreement of Sale Dt: 29.12.2020. Ex.A2 : Office copy of Legal Notice Dt: 30.03.2021 got issued by plaintiff. Ex.A3 : Returned postal cover of defendant dt:10-04-2021. Ex.A4 : Office Copy of Legal Notice Dt: 27.04.2021 got issued by defendant No.1. Ex.A5 : Office copy of reply legal notice dt: 06-05-2021 got issued by plaintiff. Ex.A6 : Two Market value certificates dt: 06-05-2021.

FOR DEFENDANT:

-Nil-

Sd/-

SENIOR CIVIL JUDGE,

WARANGAL

FAC SENIOR CIVIL JUDGE,

NARSAMPET.

- 1 -S.C.No.400 of 2022, ASJ, Wgl.

IN THE COURT OF THE ASSISTANT SESSIONS JUDGE, WARANGAL

AT HANUMAKONDA

Present: Sri M. Sai Kumar,

Senior Civil Judge-cum-Assistant Sessions Judge,

Warangal.

Tuesday, this the 01st day of October, 2024

SESSIONS CASE No.400 of 2022

(Old S.C.No.103 of 2019)

1.Name of the complainant :: The State through Sub-Inspector of Police, P.S. Mills Colony.

2.Name of the accused:: A1Renukuntla Pramod Kumar, S/o.Prakasham, Age: 33 years, Occ: Catering work, R/o.H.No.8-2-255, Ursu- Harijanawada, Warangal.

A2Suthari Sravan, S/o.Veeraswamy, Age: 27 years, Occ: Student, R/o.H.No.4-17, Perikedi Village, Rayaparthi Mandal, Warangal District.

3.Section of Law:: u/Sec.307, 427 r/w.34 IPC

4.Cr.No., and P.S.:: Cr.No.309/2018; P.S., Mills Colony

5.PRC.No.:: 290/2019

6.Name of the Officer who :: I Addl. Judicial Magistrate of First committed the case Class, Warangal.

7.Plea of the accused:: Not guilty.

8.Finding of the Court:: Not guilty.

9.Prosecution conducted by:: Sri LH. Rajeshwar Rao

Additional Public Prosecutor

10. Defence conducted by :: Sri K.Sridhar, for A1 Sri M.Sahodar Reddy, for A2

This case is coming before me for final hearing on 25.09.2024 in the presence of Sri LH.Rajeshwar Rao, Additional Public Prosecutor for - 2 -S.C.No.400 of 2022, ASJ, Wgl.

the State and Sri K.Sridhar, Counsel for the Accused No.1 and Sri M.Sahodar Reddy, Counselfor the Accused No.2; upon perusing the material papers on record and upon hearing the arguments and having stood over for determination till this day, this Court delivered the following:

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

1.The Sub-Inspector of Police, P.S., Mills Colony filed charge sheet for the offence under Section 307, 427 r/w.34 of Indian Penal Code (for short IPC) against the accused by registering in Crime No.309/2018.

2.The brief facts of the charge sheet are that, on 31.08.2018 at 20:00 hours, the complainant/LW1/Manda Surendra Babu lodged police complaint stating that, the youth of his lane addicted to bad vices and chosen wrong way by roaming with rowdy sheeters, then he nurtured them and he also submitted a petition before Commissioner of Police,

Warangal City about 15 days back, keeping the same in mind, on 31.08.2018 evening at about 18:30 hours, when LW1/Manda Surender

Babu was at his house, rowdy sheeter i.e., A1 along with another person who were drunken state came in front of his house and thrown a beer bottle on his house, due to which his ventilation glass was broken with big sound. On hearing the sound, he came outside the house and by the time he was proceeded from his house to the compound wall of his house, accused No.1 armed with sword, abused LW1/Manda Surender Babu in nasty language and picked up quarrel with him and attacked on him with sword, on seeing the incident, his son namely Sudheer Babu/LW2 came across as a result he sustained injury to his left hand, and when accused

No.1 and another person, who accompanied said accused No.1 were scuffling with them, LW1’s wife and daughter-in-law came there and rescued them, the accused persons attacked and attempted to commit murder of LW1/Manda Surender Babu, in the meantime neighbours arrived at the scene and on seeing them, the accused fled away from the scene. Hence, requested to take necessary action against the accused.

- 3 -S.C.No.400 of 2022, ASJ, Wgl.

Basing on the above complaint, LW15/M.Nagaraju, Sub-Inspector of Police, Mills Colony P.S registered a case in Crime No.309/2018 and issued FIR. During the course of investigation, LW15/Sub-Inspector of

Police examined and recorded the statement of LW1/Manda Surender

Babu. Later, LW15 visited MGM Hospital, Warangal, where he examined and recorded the statements of injured/LW2/Mandal Sudheer Babu.

Later, on 01.09.2018, LW15/S.I of Police visited the scene of offence, inspected the scene minutely and incorporated physical features of the scene in crime details form in the presence of LW9/M.S.Ali and

LW10/Gurram Sambamurthy, duly taking the photographs of the damage scene with the help of LW8/Kondoju Pawan Kumar. Thereafter, LW15/S.I of Police secured the presence of witnesses LW3/Manda Sarojana,

LW4/Manda Sruthi, LW5/Manda Malathi, LW6/Bollam Shiva,

LW7/Jeripothula Devadas, LW8/Kondoju Pawan Kumar, examined and recorded their statements. On 16.09.2018 LW15/Sub-Inspector of Police along with staff apprehended the accused No.1 and 2 at the house of A1 at 1800 hours, immediately, interrogated A1 and A2 in the presence of

LW11/Medari Babu and LW12/Kampally Vinay and recorded their confessional statements under cover of panchanama. On interrogation, accused No.1 and 2 have voluntarily confessed the guilt of the commission of this offence as such effected their arrest and produced them before the court for judicial custody. The accused No.1 is a rowdy sheeter and previously he involved in several cases in Warangal Police

Commissionerate. Subsequently, LW16/ B.Ravinder, Sub-Inspector of

Police took up the further investigation of this case and verified the investigation done by LW15. On the requisition of LW16/S.I. of Police,

LW14/G.Vinda Laxmi, IV AJMFC, Warangal recorded the statement of victim/LW1 u/Sec.164 Cr.P.C. The LW13/Dr.Karthik, who treated LW1/

Mandal Surender Babu has stated that the injuries sustained by him are simple in nature. The seized property is deposited before the Court. After - 4 -S.C.No.400 of 2022, ASJ, Wgl.

completion of investigation, LW16/Sub-Inspector of Police laid charge sheet against the accused.

3. Learned I Additional Judicial Magistrate of First Class, Warangal had taken cognizance for the offence u/Sec.307, 427 r/w.34 IPC and issued summons to them by registering the case as PRC 290 of 2019.

After appearance of accused, they were furnished with copies of the documents as contemplated u/Sec.208 Criminal Procedure Code (for shot Cr.PC). Later on, as the offence under Section 307 of Indian Penal

Code is exclusively triable by Court of Sessions, it was committed to the

Hon’ble Principal Sessions Judge, Warangal vide committal order dated

24.05.2019.

4.On committal of the case to the Hon'ble Principal Sessions Judge at Warangal, had taken file on record, as SC.No.103 of 2019 and made over the present case to the Court of I-Addl. Assistant Sessions Judge,

Warangal for disposal according to law. In view of establishment of new

Judicial Districts, this case has been allocated to this Court and re-numbered as S.C.400/2022.

5. On appearance of the accused No.1 and 2, they were examined u/Sec.228 Cr.P.C., and charges u/Sec.307, 427 r/w.34 IPC have been framed against them, read over and explained to them in vernacular language, for which they pleaded not guilty and claimed to be tried, hence proceeded with trial.

6.In order to bring home the guilt of the accused No.1 and 2, prosecution examined PWs 1 to 9 and got marked Exs.P1 to P6 and

MOs.1 and 2. Learned Addl. Public Prosector has given up the evidence of LW3/Manda Sarojana, LW4/Manda Sruthi, LW5/Mandal Malathi,

LW10/Gurram Sambamurthy, LW11/Medari Babu, LW14/ G.Govinda

Laxmi, IV Addl.JFCM, Warangal, LW16/B.Ravinder, Sub-Inspector of - 5 -S.C.No.400 of 2022, ASJ, Wgl.

Police. Ex.D1 is marked in the cross examination of PW4 by the counsel

for accused.

7. After closure of the prosecution evidence, accused No.1 and 2 were examined under Section 313(1)(b) of Cr.P.C for which they denied and reported no defense evidence.

Heard both sides and perused the written arguments of accused.

8. Upon careful perusal of record, the following points arise for the determination of the court:-

1. Whether prosecution could able to establish that on

31.08.2018 at about 18:30 hours, the accused No.1 and 2 in

furtherance of common intention attacked PW1 with knife and

caused injuries to PW2 with an intention to kill PW1 and also

committed mischief by causing damage to the ventilation

glass of the house of PW1 by throwing beer bottle?

2. Whether prosecution could able to establish the guilt of the

accused No.1 and 2 for the offence U/Sec.307, 427 r/w.34 IPC?

3. As to what result?

POINTS 1 AND 2:

9.The simple case of prosecution is that, in furtherance of common intention, accused No.1 and 2 went to the house of PW1 and thrown beer bottles as a result broken the ventilation glass belongs to the house of

PW1 and attacked him with knife with an intention to kill him and when

PW2 came across, accused No.1 caused injury to his left hand, due to the animosity against PW1 that, he submitted a petition against A1 at

Commissioner of Police, Warangal complaining that accused No.1 is showing wrong way to the youth and indulging in bad vices. In order to prove the same, prosecution relied on the evidence of PWs 1 to 9 and

Exs.P1 to P9 and MOs.1 and 2.

10.PWs 1 and 3 deposed in one voice that on 31.01.2018 at 6.30 p.m., - 6 -S.C.No.400 of 2022, ASJ, Wgl.

while they were in the house along with LWs 3 and 4, all of a sudden they heard huge sounds and when they came out of the house and seen that both the accused were standing in front of their house and they are damaging the elevation glasses of the house of PW1. PW1 deposed that he was followed by PW2 from the house. Furthermore, PWs 1 and deposed that A1 was handling big knife in his hand and abused PW1 in most filthy language for complaining against him before Commissioner of

Police, Warangal and thereby tried to attack PW1 with knife, then PW2 rescued him by snatching away PW1, on such the knife hit PW2 over his left hand and caused injuries.

11.PWs 3 and 4, the eyewitnesses to the incident deposed as deposed by PW1 about time and date of offence and on hearing the quarrel sounds, PWs 3 and 4 rushed to the crime scene and found the quarrel between PW1 and A1, in which A1 tried to stab PW1, then PW2 intervened and rescued, on such the stabbing was effected on PW2 left hand. PW3 deposed that, the incident was witnessed by LWs 3 to 5 (not examined by the prosecution) and PW4, as incident was witnessed by the witnesses, the accused persons flea away from the scene. PW4 deposed that as PW2 sustained injury, he helped PW2 by keeping his kerchief on the injury sustained.

12.In support of the evidence of PWs 1 to 4, to prove the injury, prosecution also relied on the evidence of PW8, the doctor who treated

PW2, categorically deposed that at around 8.27 p.m., on 31.01.2018,

PW4 directly came to hospital along with his friend with injuries of incision wound of 14X0.2X01 c.m. over the left hand and the injury was simple in nature of 5 hours old which can be caused through sharp object as mentioned in Ex.P5.

13.As seen from the evidence of PWs 1 to 4 coupled with oral - 7 -S.C.No.400 of 2022, ASJ, Wgl.

evidence of PW8 and documentary evidence under Ex.P5, prosecution could able to establish that the injury of PW2, however still prosecution has to establish to the weapon used for the commission of offence is

MO.1 or not. In that regard, when PW8, the doctor who treated PW2, in her cross examination categorically deposed that injury mentioned in

Ex.P5, may be caused with any sharp object like broken glass and also admitted that MO.1 is not found with any stains much less blood stains as it appears to be brand new object. Apart from the evidence of PW8, PWs 1 and 2 in their cross examination categorically deposed that they mentioned in Ex.P1/police compliant and they respective u/Sec.161

Cr.P.C. statement that the weapon used for the commission of offence is a Talwar measuring 1½ feet length, but when the eyewitnesses i.e., PWs 3 and 4 were cross-examined, they did not state about the measurements of the crime weapon. Adding to it, as stated supra, PW4 deposed that

PW2 sustained injuries with small knife over his left hand, as such his kerchief over the injury. It is pertinent to state that no such instances of

PW4 keeping the kerchief over the injury was neither deposed by PW1 nor by PW2/injured. As such, in the absence of any such evidence the evidence of PW4 appears to be not believable. Furthermore, as stated supra, MO.1 is a small knife without having any blood stains and brand new and the same was admitted by PW9, the sole investigating officer during his cross examination. Apart from that, PW9 also admitted that

MO.1 is not a Talwar which itself sufficient that MO.1 is not the weapon used for the commission of offence as per the evidence of PWs 1 and 2.

14.Further, the reason for such alleged attack as per the version of

PWs 1 to 4 that they all in one voice deposed that as PW1 lodged police complaint against the accused, prior to it, PW1 admonished all the local people saying that they could not roam along with unsocial elements and should study for prosperity and later also approached Police

Commissioner, Warangal as stated supra by lodging complaint against - 8 -S.C.No.400 of 2022, ASJ, Wgl.

accused. But, during the cross examination of PW1, he categorically admitted that father of A1 and his brothers filed civil suit against PW1 and others vide OS No.290 of 2015 on the file of IV Addl. Junior Civil Judge,

Warangal and also obtained interim injunction. Though, PW1 denied all other suggestions that after obtaining injunction, PW1 to take vengeance lodged police complaint to counter-blast the civil suit. Furthermore, he also admitted that, he did not mention any description of A2 in Ex.P1 nor stated that the incident was witnessed by any of his family members and nighbours as the same was not mentioned in his u/Sec.164 Cr.P.C.

statement, which was categorically admitted by PW9/I.O. in his cross examination.

15.Further, PW1 in his cross examination to the utter surprise admitted that he did not see how and who damaged his building glass elevation which is totally against to the prosecution case. It is not out of place to mention that, though the learned Addl.P.P. tried to get identify A2 through

PW3 and got categorically identified, but during the cross examination of

PWs 3 and 9, they categorically admitted that PW3 did not state in his u/Sec.161 Cr.P.C. statement that he can identify A2 on seeing, which was categorically admitted by PW9 in his evidence. Thus, in the absence of any specific evidence from PWs 3 and 4, that they can identify A2 and A1 is the person, who attacked PW1, in turn caused injury to PW2. The only eyewitnesses are PWs 3 and 4, but PW4 did not state to police, the portion of his u/Sec.161 Cr.P.C. statement "తల్వా�ర్ తో సురేం�దర్ బాబు పై� దాడిచేయుచుం�డగా, సురేం�దర్ బాబు కొడుకు అయిన మం�ద సుధీర్ బాబు చూ�సి," that PW4 in his u/Sec.161 Cr.P.C. stated as extracted supra under Ex.D1, it was categorically deposed to PW9 that the weapon used for the commission of offence was Talwar, but not small knife as deposed by him in his evidence which was categorically admitted by PW9 in his cross examination. On perusal of u/Sec.161 Cr.P.C. statement of PW3, he also deposed in the same lines of PW4 as in Ex.D1. Thus, admittedly, the - 9 -S.C.No.400 of 2022, ASJ, Wgl.

weapon used for the commission of offence is Talwar, but whereas the

MO.1 is a small kitchen knife brand new without any blood stains, as such they are not one and the same.

16.Further, PW3 during his evidence deposed that when he went to collect his milk bills at Harijanawada of Ursu village as he is a milk vendor, then he heard the hues and cries from the house of PW1. But, when he was cross-examined though he denied that he did not state to police that he went to collect his mils bills on the way of alleged incident at crime scene, but PW9 has categorically admitted that PW3 did not state before him about his being at crime scene for the purpose of collecting his milk bills as he is a milk vendor, as such, his proximity of presence at crime scene is doubtful.

17.Further, PW4 is the another eyewitness though deposed that he is the neighbour of the house of PW1, but during his cross examination he categorically admitted that PW1 and accused are their relatives. Further, he also deposed that he hails from Kazipet and his clinic is situated at

Nagamaiah Arch. Though, PW4 denied the suggestion that he is not the locality person of crime scene and he is not the witness to the incident, but in view of his own admission that he hails from Kazipet, as such the question of his residing neighbouring to the house of PW1 is at stake without furnishing any documentary proof of his residence.

18.There left the evidence of crime scene panch and confession-cum- seizure panch i.e., PWs 6 and 5 respectively. PW6 though deposed that while visiting at his in-laws house at Urus Karimabad enroute PW9, secured his presence and obtained his signatures on crime details form and rough sketch as the same was scribed in his presence under Ex.P3.

But, during the cross examination of PW6, he categorically admitted that during the relevant period of Ex.P3, he worked as data entry operator at - 10 -S.C.No.400 of 2022, ASJ, Wgl.

Waddepally, Hanumakonda and he do not know the contents of Ex.P3.

Further, PW5 deposed that on 16.09.2018, police called him and LW11 to the house of A1 while police enquiring with A1 about the incident, A1 disclosed that A1 intended to eliminate PW1 as such attacked on him and police seized two mobile phone, Royal Enfield bike, small knife from A1 under cover of panchanama/Ex.P2 and identified MOs.1 and 2 i.e., mobile phones and small knife. But, during his cross examination though he was suggested that he is a stock witness and acted as mediator of confession cum seizure panchanama against A1 in CC No.3130/2018 of

P.S. Kazipet, but he denied, whereas PW9 in that regard has categorically admitted that PW5 is a stock witness. Apart from that, PW5 himself deposed that the confession was made by A1 while police enquiring with him, as such it is sufficient that the confession was made by accused

No.1 in the presence of police which is not admissible in evidence as per

Section 25 of Indian Evidence Act.

19.Thus, in view of the above discussion, though prosecution could able to establish the crime scene from the oral evidence of PW6 coupled with documentary evidence under Ex.P3, but from the discrepancies of crime weapon and identification of A1 and A2 by the independent eyewitnesses i.e., PWs 3 and 4, further discrepancies in the evidence of

PWs 1 and 2 regarding damage of glass elevation of their house were not by the accused persons (as they do not know), the evidence of PW7 the photographer, who photographed the damage elevation glasses under

Ex.P4/photographs would not help neither PW1 nor prosecution as PW9 failed to seize any of the damaged property from the crime scene.

Further, in view of the legal disputes between father of A1 and PW1 clearly shows that there are revelry between them which warranted PW1 approaching the police against A1 prior to this case and subsequently lodging this case would create doubtfulness in the genuineness of the prosecution case. As such, this Court feels that accused persons are - 11 -S.C.No.400 of 2022, ASJ, Wgl.

entitled for clear cut benefit of doubt. Accordingly, the points are answered.

POINT NO.3:

In the result, accused No.1 and 2 are found not guilty for the offence punishable u/Sec.307, 427 r/w.34 IPC. Accordingly, they are acquitted for the same under Section 235(1) Cr.P.C. The bail bonds of accused shall stands cancelled subject to Section 437(A) Cr.P.C. MO.1 shall be destroyed after appeal time is over. MO.2 seized from accused

No.2 and deposited vide CPR No.20/2019 before I Additional Judicial

Magistrate of First Class, Warangal shall be destroyed as it is not useful

after appeal time is over. The unmarked case property i.e., Royal Enfield

Class bearing registration No.TS.03EM9318 and VIVO X21 cellphone which was given to accused No.1 as per the orders in Crl.M.P.No.247 of 2019 dated 25.11.2019, shall be made absolute after appeal time is over.

Typed to my dictation by the Stenographer, corrected and pronounced by me in the open Court on this the 01 st day of October, 2024.

Sd/-

ASSISTANT SESSIONS JUDGE,

WARANGAL.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE:

PW1 : Manda Surendra Babu/Complainant/InjuredNone. PW2 : Manda Sudheer Babu/Injured PW3 : Bollam Shiva/Eyewitness PW4 : Jeripothula Devadas/Eyewitness PW5 : Kampally Vinay/Panch witness for confession and seizure PW6 : M.S. Ali/Panch witness for CDF PW7 : K.Pavan Kumar, Photographer PW8 : Dr.V.Karthi PW9 : M.Nagaraju/Investigating Officer - 12 -S.C.No.400 of 2022, ASJ, Wgl.

EXHIBITS MARKED

FOR PROSECUTION: Ex.P1 : Police complaint dated 31.08.2018. Ex.P2 : Confession-cum-seizure panchanama. Ex.P3 : Crime details form. Ex.P4 : Three photographs along with CD. Ex.P5 : Wound certificate. Ex.P6 : F.I.R.

FOR DEFENCE: Ex.D1 : Portion in the 161 Cr.P.C. statement of PW4.

MATERIAL OBJECTS

MO.1: Knife MO.2: Samsung company DUOS mobile.

Sd/-

ASSISTANT SESSIONS JUDGE,

WARANGAL.

-1-

O.S.No.499 of 2010, SCJ, Wgl.

IN THE COURT OF SENIOR CIVIL JUDGE :: WARANGAL

AT HANUMAKONDA

Present: - Sri M.Sai Kumar,

Senior Civil Judge,

Warangal.

Wednesday, this the 25th day of September, 2024

O.S.No.499 of 2010

Between:

Nallapu Buchaiah, S/o.Venkataiah, Age: 65 years, Occ: Agriculture, R/o.Chinta Nekkonda Village, Parvathagiri Mandal, Warangal District.

... Plaintiff

And

1. Perala Lachamma, W/o.Late Mallaiah, Age: 60 years, Occ: Household,

2. Perala Rama, W/o.Late Devender Rao, Age:40 years, Occ: Household,

3. Perala Meghana, D/o.Late Devender, Age: 15 years, Occ: Student,

4. Perala Shiva Rama Krishna @ Pandu, S/o.Late Devender, Age: 13 years, Occ: Student, the defendants No.3 and 3 are minors, rep., by their natural mother i.e., Perala Rama, W/o.Late Devender Rao.

All are R/o.Chinta Nekkonda Village, Parvathagiri Mandal, Warangal District.

... Defendants

This suit is coming before me on 03.07.2024 for final hearing in the presence of Sri Padma Aravind, Advocate for the plaintiff and Sri T.Shyamsunder Rao, Advocate for the defendant No.2 and Sri A.Madan Mohan Rao, Advocate for the defendants No.3 and 4 and defendant No.1 remained exparte and on perusal of the material on record and the matter having stood over for consideration till this day, the Court delivered the following:

:: JUDGMENT::

1.This is a suit filed for recovery of money of Rs.2,25,000/- with future interest @ 2% per month on the principal amount of Rs.1,50,000/- from the date of suit till realization against the estate of deceased Devender

Rao, who are defendants No.1 to 4 and also to award costs of the suit.

-2- O.S.No.499 of 2010, SCJ, Wgl.

2.The brief facts of the plaint are that the son of defendant No.1, husband of defendant No.2 and father of defendants No.3 and 4 namely

Perala Devender Rao was having acquaintance with the plaintiff since long time, due to the said acquaintance the said Perala Devender Rao approached the plaintiff and requested him to arrange an amount of

Rs.1,50,000/- for his family needs and agreed to repay the same with interest @ 2% per month on demand, accordingly plaintiff paid the said amount of Rs.1,50,000/- to Perala Devender Rao 10.07.2008, on receiving the said amount Perala Devender Rao has executed a demand promissory note in favour of the plaintiff in the presence of attestors but on the promissory note due to over sight the interest portion was not written by late Perala Devender Rao, but the said Perala Devender Rao did not turn up to pay the above amount as agreed in-spite of several requests and demands made by the plaintiff. But, unfortunately Perala

Devender Rao died, by leaving behind him the defendants to his estate, the defendants acquired all the properties of deceased Devender Rao and enjoying the same. As such, the plaintiff approached the defendants and demanded to repay the aforesaid amount borrowed by Perala

Devender Rao, but the defendants failed to pay the same for which the plaintiff finally issued a legal notice on 20.06.2010 calling the defendant to pay the aforesaid amount along with interest, but the defendants have refused the legal notice. Hence, plaintiff filed the present suit and prayed for decreeing the same as prayed.

3.The defendant No.1 is set exparte.

4.The defendant No.2 filed written statement denying all the averments made in the plaint in toto except the relationship between the defendants and late Perala Devender Rao. The defendant No.2 contended that, late Perala Devender Rao never borrowed any amount from the plaintiff at any point of time as such defendant No.2 is not liable to pay any amount to the defendant and the demand promissory note is -3- O.S.No.499 of 2010, SCJ, Wgl.

not admissible in law as such suit based on such document is not maintainable. The signatures appearing on the demand promissory note is not belongs to late Perala Devender Rao as plaintiff created the suit documents only for the purpose of the suit and to knock away the property of defendant no.2 by taking advantage of death of Devende Rao and the suit document is forged one. Late Perala Devender Rao is not a educated person, he used to put his signature only, but he is not able to write Telugu as his own. The defendant no.2 has not acquired any properties from deceased Perala Devender Rao. Hence, prayed for dismissal of the suit.

5.The defendants No.3 and 4 filed written statement denying all the averments made in the plaint and further contended that the suit for recovery of money is not maintainable against the defendants. The legal heirs of deceased Hindu are not liable to discharge the debts alleged to have contacted by the deceased Hindu. Even otherwise, in view of the prohibition contained in Section 6(4) of the Hindu Succession (Amendment) Act, 2005, there is no pious obligation on the legal heirs of the deceased Hindu to discharge the debts on this ground alone the defendants are not liable to discharge the alleged debts of the deceased.

Perala Devendar Rao did not borrow any amount from the plaintiff and did not execute the alleged promissory note, the alleged promissory note is inadmissible in evidence and cannot be looked into for any purpose.

Signature part of the stamp affixed on the promissory note did not extend to a portion of the alleged promissory not and and stamp was not validly cancelled as required u/Sec.12(2) and Section 35 of Stamp Act, as such the alleged promissory not shall be treated as not stamped at all and the alleged promissory note is not admissible in evidence as such suit is liable to be dismissed. Perala Devendar Rao did not execute the alleged promissory note as such defendants are not liable for the suit claim and plaintiff is not entitled to claim interest from the date of promissory note -4- O.S.No.499 of 2010, SCJ, Wgl.

since admittedly rate of interest is not mentioned on the alleged promissory note. The plaintiff is a professional money lender and doing the money lending business without obtaining license from the competent authority constituted under A.P (T.A.) Money Lenders Act as such the suti is not maintainable and plaintiff is not entitled to claim interest @ 2% per month. The signature appearing on the revenue tickets of the alleged promissory note do not belong to Perala Devendar Rao and he did not sign on it and it is a rank forgery. The plaintiff in collusion with the so called attestors has created and fabricated the alleged promissory note as Perala Devendar Rao neither had necessity nor occasion to borrow amount from the plaintiff. The plaintiff taking advantage of death of Perala

Devendar Rao, has fabricated and created the alleged promissory note by forging his signature and filed the suit to extract the money from the defendants. The plaintiff never approached the defendants and never demanded them for the repayment. Admittedly, the legal notice was not served on the defendants as such, question of replying to the legal notice does not arise. When the Perala Devendar Rao did not borrow any amount from the plaintiff as such question of defendants avoiding the repayment does not arise. The silence on the part of the plaintiff in not issuing any legal notice or in not initiating any legal proceedings for more than six months of the date of death of Perala Devendar Rao, clearly establishes the malafide intention on the part of the plaintiff in filing the suit. The plaintiff filed the above suit with all false allegations and based on fabricated documents and plaintiff is liable to pay exempted costs and damages to each of the defendants under Section 35(A) of C.P.C. The defendants have incurred expenditure for defending above suit, apart from spending their valuable time for procuring documents for the proper conduct of the case as such the plaintiff is liable to pay an amount of

Rs.50,000/- to each of the defendants and defendants are entitled for the same under Section 35(1) C.P.C. Hence, prayed for dismissal of the suit with exemplary costs and direct the defendant to pay exempted costs to -5- O.S.No.499 of 2010, SCJ, Wgl.

each of the defendants and further direct the plaintiff to pay an amount fo

Rs.50,000/- to each the defendants No.3 and 4.

6.Basing on the rival contentions of the both sides pleadings, the following issues are framed for trial.

1. Whether the suit pronote is true, valid and binding defendants?

2. Whether the late Perala Devender Rao left any estate which is in the hands of the defendants No.1 to 4?

3. Whether plaintiff is entitled to recover the suit claimed amount from the defendants?

4. Whether the plaintiff is doing money lending business without license?

5To what relief?

7.As per the order vide I.A.No.586/2023, the following additional issues are framed for trial.

1. Whether Perala Devender Rao during his life time executed promissory note dated 10.07.2008?

2. Whether the plaintiff is entitled to claim interest @ 2% per month, when rate of interest is not mentioned in the promissory note?

3. Whether the plaintiff is not entitled to claim suit amount from defendants No.2 to 4, being the legal heirs of Perala Devender Rao, for the debt alleged to have contacted by Perala Devende Rao contended u/Sec.6(4) of Hindu Succession (Amendment) Act, 2005.

4. Whether stamps on the promissory note were not validly cancelled as required u/Sec.12(2) and Section 35 of Stamps Act and the promissory shall be treated as not stamped?

5. To what relief?

8.At trial, plaintiff himself examined as PW1 and marked as Ex A1 to

A10 and also examined third parties to the suit as PWs 2 and 3 in support of plaintiff contentions. Chief affidavit of DW1 was filed by the witness did -6- O.S.No.499 of 2010, SCJ, Wgl.

not turn-up for cross examination as such his evidence was impliedly eschewed.

No representation for either side, hence treated the evidence of both sides as heard and perused the record.

ADDITIONAL ISSUE NO.4:

9.This issue has been raised by defendants No.2 to 4 contending that as the alleged signature of Perala Devender Rao does not cross the revenue stamps, as such the same has hit by Section 12 (2) and Section 35 of Stamp Act and the promissory note of Ex.A1 is not a valid promissory note under law. Though, in this regard, PW1 was cross- examined at length, but nothing much was elicited anything in favour of defendants and no any suggestion was given to PW1 covering this issue.

The main defence of the defendants are that Perala Devender Rao never signed as in Ex.A1 and taking advantage of death of Devender Rao,

Ex.A1 is created by forging his signature. Though, in this regard PW1 was cross-examined by giving suggestion, but, the same was denied by him.

On perusal of Ex.A1, it is clearly reveals that the signature of Perala

Devender Rao was on entire 5 stamps and slightly the said signature surpasses the revenue stamp to promissory note in view of the same the contention raised by the defendants as it is hit by section 2 and section 35 of Stamp Act is not helpful to them.

10.Further, the plaintiff examined PWs 2 and 3 who are the 3rd parties to the suit proceedings, but, they are the attesting witnesses to the Ex.A1, they categorically deposed in their evidence that in their presence Perala

Devender Rao have executed the said promissory note of Ex.A1 and though the same was disputed by the defendants during their cross examination by giving suggestion, but, both witnesses i.e., PWs 2 and 3 denied the said suggestion, as such the contention raised by the -7- O.S.No.499 of 2010, SCJ, Wgl.

defendants does not stand before scrutiny of law. Accordingly, the issue is answered.

ISSUE NO.2:

11.This issue has been framed on the defence taken by the defendants No. 2 to 4 and in this regard, PW1 was cross-examined at length, but nothing much was elicited anything, in this regard on record except PW1 admitting that he has filed the suit against Erripothula Ailaiah as he lent money to him on interest basis, but, the said Ailaiah did not repay the same. Further, PW1 during his cross examination deposed that except Perala Devender Rao, Erripothula Ailaiah he has not lent any money to any person in the village. Apart from that PW1 was suggested that he is in a habit of lending money for the people on interest basis as he is professional money lender, but, the said suggestion was categorically denied by PW1.

12.Further, it is not out of place to mention that no any suggestion was given to PWs 2 and 3 regarding this issue, and as PW1 denied the said suggestion of this issue and further no any other evidence was brought on record by the defendants in support of their defence, as such, this

Court holds that defendants failed to establish that plaintiff is a professional money lender without having any valid license under law.

Accordingly, the issue is answered.

ISSUES NO.1, 3, 4 AND ADDITIONAL ISSUES NO.1 TO 3:

13.As the issues are inter linked, as such this Court has inclined to answer the same at once. Admittedly, as per the Section 6 of Hindu

Succession Act, as concept of pious obligation has been removed by virtue of Amendment Act, 2005 to Section 6 of Hindu Succession Act, 1956, as such, defendants No.1 to 4 are not personally liable to discharge the suit claim provides (if plaintiff establish his case). However, the law -8- O.S.No.499 of 2010, SCJ, Wgl.

provides that if the defendants even inherited or succeeded any property from the deceased Perala Devender Rao, then they are liable to discharge the suit claim from the said property.

14.PW1 categorically reiterated the entire contents of plaint in his chief examination affidavit, but, as seen from the Ex.A1, there is no interest mentioned in the column as contended by PW1 in his pleadings and evidence, but PWs 2 and 3 did not depose anything regarding interest in their evidence. Though, PW1 mentioned that due to over sight though

Perala Devender Rao agreed to pay interest @ 2% per month on the amount borrowed, the same was not mentioned in Ex.A1, but, to substantiate the same except the oral evidence of PW1, the attesting witnesses are salient in that regard, as such, in the circumstances without their being any supporting evidence from the eyewitness and attesting witness to the transaction under Ex.A1, this Court holds that plaintiff is not entitled for any interest on the money lent on Ex.A1.

15.As the plaintiff categorically deposed that Perala Devender Rao for his family necessities borrowed an amount of Rs.1,50,000/- on 10.07.2008 and executed promissory note under Ex.A1 and subsequently died without discharging his liability under Ex.A1, plaintiff got issued legal notice to the defendants i.e., legal heirs of Perala Devender Rao, but they refused to receive the notice of Ex.A2 signed through registered post acknowledgment due under Exs.A3 to A6, but they were returned under

Exs.A7 to A10 with the endorsement refused to receive the notice.

Admittedly, the address of defendants as mentioned in Ex.A2 legal notice, on Exs.A7 to A10 are the one and the same would be suit cause title, as such, as per the presumption under general clause Act, it is the address of defendants when they have received summons from the Court, they refused the legal notice of Ex.A2 signed under Exs.A3 to A6 by refusing the same under Exs.A7 to A10 deems to be duly served under law.

-9- O.S.No.499 of 2010, SCJ, Wgl.

16.Though PW1 was cross-examined at length putting all the defence of the defendants by giving suggestion, but nothing much was elicited anything in favour of defendants.

17.Apart from the above new facts was brought on record during the cross examination of PWs 1 to 3 that Perala Devender Rao has also executed a document on stamp paper that if he failed to pay the money borrowed under Ex.A1, then the plaintiff may cultivate the land of Perala

Devender Rao, but no any such document of stamp paper on which the alleged under taking was filed before the Court. Further, PWs 2 and 3 also deposed the same lines of PW1 during their cross examination, but, in the absence of any document to that effect, this Court holds that there is no any under taking given by Perala Devender Rao, if he fails to repay the money borrowed under Ex.A1 his property to be cultivated by plaintiff and as there is no any pleadings in that regard nor the same was mentioned on Ex.A1. As such, in the absence of any such pleadings the evidence in that regard during the cross examination though may help the defendants in showing that apart from the suit transactions in-furtherance of it, there was a agreement between the parties, but the same was not pleaded, as such, in the absence of any such pleadings and document on record though it helps the defendants it may not be considered at this juncture which is no way useful to the Court in suspecting the transaction of Ex.A1 between plaintiff and Perala Devender Rao. Adding to it, the evidence of Perala Devender Rao executed document of stamp paper that, if he fails to pay amount borrowed under Ex.A1 as plaintiff may cultivate his property he is showing that transaction took place between plaintiff and defendants Perala Devender Rao as in Ex.A1.

18.Though defendants categorically disputed that Ex.A1 is the forged document and created by the plaintiff for the purpose of knocking away the property of Perala Devender Rao in collusion with PWs 2 and 3, but it -10- O.S.No.499 of 2010, SCJ, Wgl.

is settled law that the burden of proving allegations of forgery is on the person who alleges itand the same has been held by the Hon’ble

Karnataka High Court in the case ofSri Bhasker S. Kattemar Son of ...

vs Sri P.E. Hameed Son Of P.S. Ibrahim reported in 2007 (4) KarLJ 56

at para No.12 as follows:

“The allegation of rank forgery, collusion in knocking off the property, etc. are made in the written statement. But, surprisingly no proceedings were initiated at any point of time as against the plaintiff either before or after filing of the suit.

Learned trial judge noticing the conduct of the defendant has rightly ruled against the defendant in paragraph-38 of the judgment in question. We cannot but notice that the defendant is a practising lawyer. If there is really any forgery, he would have certainly taken action against the plaintiff. Non- taking of any action by the defendant in the case on hand would go to against the defence placed by the defendant appellant.”

19.Though DW1 filed his chief affidavit, but she did not turn up to face the cross examination even after three adjournments, as such her chief examination has being eschewed by the Court and defendants failed to discharge the allegations of forgery on Ex.A1 by sending the document to

Forensic Science Laboratory (FSL), as such, this Court holds that as defendants did not comply with the law laid down with the above judgment, as such, they failed to establish the main defence of forgery.

20.As plaintiff by virtue of his oral evidence coupled with documentary evidence on Ex.A1 to A10 and oral evidence of PWs 2 and 3 categorically establish that Perala Devender Rao borrowed Rs.1,50,000/- under Ex.A1 and failed to discharge the same, as such, he is entitled to recover the same from the defendants though not personal from them, but from the -11- O.S.No.499 of 2010, SCJ, Wgl.

estate if defendants succeeded any property or estate from Perala

Devender Raao. Accordingly, the issues are answered.

ISSUES NO.5:

In the result, the suit of the plaintiff is decreed with costs for a sum of Rs.1,50,000/- (Rupees one lakh fifty thousand only) against defendants jointly and severally to the extent of estate of Perala Devender Rao succeeded by defendants.

Typed to my dictation, corrected and pronounced by me in the open court on this the 25 th day of September, 2024.

Sd/-

SENIOR CIVIL JUDGE,

WARANGAL

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF: FOR DEFENDANTS:

PW1 : N.Buchaiah None PW2 : V.Sammaiah PW3 : V.Shivaiah

EXHIBITS MARKED

FOR PLAINTIFF: Ex.A1: Demand promissory note dated 10.07.2008. Ex.A2: Office copy of legal notice dated 20.06.2010. Ex.A3: Postal receipt. Ex.A4: Postal receipt. Ex.A5: Postal receipt. Ex.A6: Postal receipt. Ex.A7: Unserved postal cover of the defendant No.1. Ex.A8: Unserved postal cover of the defendant No.2. Ex.A9: Unserved postal cover of the defendant No.3. Ex.A10: Unserved postal cover of the defendant No.4.

FOR DEFENDANTS: Nil

Sd/-

SENIOR CIVIL JUDGE,

WARANGAL

1O.S.No.305 of 2022, SCJ, Wgl.

IN THE COURT OF THE SENIOR CIVIL JUDGE :: WARANGAL

AT HANUMAKONDA

Wednesday, this the 25th day of September, 2024

Present:- Sri M. Sai Kumar,

Senior Civil Judge,

Warangal.

O.S.No.305 of 2022

(Old OS No.556 of 2015)

Between:

Jatiling Jagadeshwar Sa, S/o.Late Ramaiah, Aged: 65 years, Occ: Business, R/o.H.No.5-817/26, Plot No.230 Mahalaxmi Colony, Near Loyala Academy Behind Old Age Home, Old Alwal, Secunderabad.

...Plaintiff

And

1. Jatiling Krishna Sa, S/o.Ramaiah, Aged: 56 years, Occ: Private Employee,

2. Smt.J.Ratnabai, W/o.Late Ramaiah, Aged: 80 years, Occ: Household,(Died) both are R/o.13-7-146/1, Mattewada, Warangal.

3. Smt.B.Sarojini, W/o.Nagendram, Aged: 62 yeaers, Occ: Household, R/o.H.No.C/o.Kumar Baredu, Plot No.G-4, SVS Heights, New Martuthi Nagar, Kothapet, Hyderabad – 500535.

...Defendants

This suit is coming before me in the presence of Sri Molugoori Ranjeeth,Advocate for the Plaintiff andSri Bhagawandas Mandhani, Advocate for the defendants No.1 and 2 and suit against defendant No.3 is dismissed, upon perusing the material on record and having stood over for consideration till this day, the Court delivered the following:-

J U D G M E N T

1.This is a suit filed for partition and to allot half share to the plaintiff in the suit schedule property i.e., northern part of house bearing Mcpl.No.13-7-146, situated at Mattewada, Warangal measuring 95.33 Sq.Yds within the following boundaries:- East: House of

J.Veeranna and Syed Muneeruddin, West: Municipal Road, North:

2O.S.No.305 of 2022, SCJ, Wgl.

House of J.Veeranna, South: Portion that fell to the share of

J.Sarveshwara Sa in earlier partition; and to pass a decree for

Rs.72,000/- towards past mesne profits; and to grant mesne profits at

Rs.2,000/- per month from the date of the suit till specific possession of the property is delivered to the plaintiff for using the joint share of the plaintiff by the defendant; and to appoint an advocate commissioner to divide the property into two equal half’s and put the plaintiff in one such half share and also to award costs of the suit.

2.The brief facts of the plaint are that, late Laxmaiah was the father and he died in the year 1995, he survived by his wives namely

Smt.J.Narsu bai and Smt.J.Ratanbai and his sons namely J.Jagadeshwar

Sa (plaintiff), Sarveshwara Sa and J.Krishna Sha (defendant),

Sri J.Sarveshwara Sa was born through his first wife Narsubai and other two sons through his second wife namely Ratan bai. The the plaintiff and defendant are also having sister namely Sarojani and the said

Smt.Narsubai died in the year 2007. After the death of their father (late

Ramaiah) all the three brothers have partitioned the only housing property available to the family on 10.02.1999 under a partition deed vide registered document No.577 of 1999 (hereinafter called as suit schedule property) fell in the joint share of the plaintiff and defendant and the remaining property on south fell to the share of Sarveshwar Sa as such the schedule property remained joint ever since partition.

Smt.Sarojani is the sister of the parties to the suit was paid cash towards her share in the property by plaintiff, hence she is only a proforma party and she is made as party to avoid the legal implications. Like wise, defendant No.2 is also aware of the partition in the year 1999, she also did not raise any claim for the share in the property. However, the plaintiff and the defendants are maintaining the mother according to their convenience. As such, the defendants No.2 and 3 are by their conduct and acquiesce are estopped to claim a share 3O.S.No.305 of 2022, SCJ, Wgl.

in the schedule property. The schedule property was partly country tiled and partly madras terrace roof building. The entire building was removed since became old as the same was effected under road widening and hence to have living new building was constructed and plaintiff has contributed a sum of Rs.5,00,000/- in the year 2002 for the construction of present new building, where in defendant is residing along with the mother and his family.

3.The plaintiff further contend that, as per the terms of the partition, the defendant No.1 is entitled for the ground floor and the plaintiff shall construct the upper floors, reside in it. The plaintiff has been residing at Secunderabad and once in a while he used to come to the schedule property and stayed in the house and looked after his mother. In the year, 2005 the plaintiff intended to construct the upper floor and at the request of defendant, he postponed such construction activity and at all time the plaintiff was expressing the desire to have a house at Warangal and has been insisting upon the defendant to furnish the copies of building permission of Warangal Municipal

Corporation, Warangal as the competent authority required to produce the original sanctioned plan of the round floor construction of upper floors, but the defendant was negligent and was not cooperative. In

October, 2012 when he insisted for documents, he got filed M.C.34 of 2012 on the file of Family Court, Warangal contending that the plaintiff is not contributing any amount for maintenance of mother but the same are false. The defendant No.2 was with plaintiff for about 10 years and the later year to 2007 or 2008 she shifted to Warangal and was staying with the defendant No.1 in the schedule property. The plaintiff whenever visited Warangal, used to pay the money to his mother for her medical and other needy expenses. The plaintiff has been paying the maintenance as ordered by the Family Court.

4O.S.No.305 of 2022, SCJ, Wgl.

4.The plaintiff further contend that, the defendant is in no mood to abide by the terms of the partition deed, he issued a legal notice on 07.07.2015 (wrongly typed as 07.06.2015, offering to sell his half share to the defendant and if it is not acceptable to him, the plaintiff expressed his readiness to purchase the share of the defendant, alternatively the plaintiff also demanded the defendant to furnish the copies of the original documents to raise construction of the upper floors. The defendant received the said legal notice on 08.07.2015, but he did no cause any reply as such the plaintiff has lost the hope of amicable settlement. By the the conduct of the defendant he could not construct the upper floors and on account of which the plaintiff has suffered loss of rental income for such portions. The estimated loss of revenue at Rs.2,000/- per month. Though the plaintiff is entitled to recover such loss of revenue from 2008, he is restricted his claim from 01.11.2012 to 30.09.2015, as such the total loss of revenue due is

Rs.70,000/- and also claiming the future loss at the same rate. Hence, plaintiff filed this suit for partition.

5.The counsel for defendant No.2 filed a memo dated 05.02.2020 stating that defendant No.2 died on 15.01.2017 and her LR is already on record as defendant No.3.

6.The defendant No.1 filed written statement denying the contents made in the plaint in toto except the relationship between the parties and death of Ramaiah in the year 1995 and also death of defendant

No.2 on 15-01-2017. Further also admitted that the another wife of

Ramaiah by name Narsu Bai was died and she is survived by son viz.,

Sarveshwar Sa. Further, defendant No.1 did not disputed about a partition was effected between Sarveshwar Sa, step brother of the plaintiff and defendant No.1. The defendant No.1 further contended that, as per said partition deed, the plaintiff and defendant No.1 jointly allotted schedule B property. The defendant No.1 was entitled to 5O.S.No.305 of 2022, SCJ, Wgl.

ground floor and as extent he construct or lays the top floors and upon such construction further floors upon the constructed floors by defendant No.1 and upon such constructions the plaintiff shall have right to construct further floors upon the constructed floors by defendant No.1. The shares were allotted shall be their respective shares are free from all kinds of encumbrances, charges, liens, disputes claims of what so ever nature. The plaintiff entered into an adjustment while undertaking reconstruction of the portion allotted to him with

J.Rajeshwar Sa, southern side neighbor. Furthermore, the defendant

No.1 denied that the plaint schedule property remained joint between plaintiff and him. As per the partition deed, the allotment made in para 2 shall be enjoyed by the respective shares as absolute owners and are entitled to hold their shares with attendant rights and are entitled to hold the same absolutely forever. The plaintiff with malafide intentions has filed the present suit to harass defendant No.1. The defendant No.2 since more than three decades has been residing with defendant No.1.

The plaintiff never paid any amount towards her expenses. Vexed with the attitude of the plaintiff, the defendant No.2 got filed maintenance case vide MC No.34 of 2012 on the file of Family Judge Court at

Warangal and she was examined as PW1 in said case and after hearing both the parties the Court was pleased to decree the case awarding maintenance amount of Rs.3,000/- payable by defendant No.1 and the plaintiff to the defendant No.2. The defendant No.1 paid the amounts beyond the said amount and took the welfare till her last breath. The plaintiff never paid single pie towards her welfare. The plaintiff in-spite of the orders of the Court never paid either during the pendency of the case or after the disposal of the case. The plaintiff never undertook the responsibility as a son towards defendant No.2, as such the suit against the defendant No.2 stood abated as no steps taken.

7.The defendant No.1 admitted the issuing of notice by the plaintiff 6O.S.No.305 of 2022, SCJ, Wgl.

and stated that, in the said notice also the plaintiff admitted that the property felt to the share of defendant No.1 as per deed of partition, a building is constructed. The said construction is the exclusive made by defendant No.1 and his family residing therein along with defendant

No.2. The defendant No.1 name is mutated in the municipal records as owner and paying property taxes and water taxes to the concern department since 2002 on-wards. The extent of the property shown in the schedule is not correct. The plaintiff has been residing at

Hyderabad and did not visit the house except once i.e., on the occasion when defendant No.2 was cross-examined though commissioner in the house of defendant No.1 in said MC case. Denied the maintenance provided by the plaintiff to her mother as ordered by the Family Court.

After issuance of the notice dated 07.07.2015 to defendant No.1, a meeting was held before the elders and during the enquiry, they found the claim of the plaintiff is false and directed him to pay the maintenance to the defendant No.2 and further stated that he has no right to claim of what so ever nature over the plaint schedule property and in view of the copy of the deed of partition which is already available with them and that the plaintiff did not contribute as alleged and plaintiff agreed before them to withdraw the said allegations, believing said version defendant No.1 did not issue any reply to said notice. The alleged offer in said notice dated 07.07.2015 was a ply created to avoid payment of maintenance amount to the defendant

No.2 and pressurized defendant No.1 not to claim share in the properties acquired by the plaintiff from and out of joint family nucleolus. The alleged profits as claimed is imaginary and no basis for the same. The defendant No.1 denied any payment in said regard much less Rs.72,000/- @ Rs.2,000/- per month. The plaintiff has no cause of action to file the suit. The court fee paid by the plaintiff is not correct and same is insufficient. The plaintiff is not in the joint possessor of the suit schedule property. No court fee is paid for the 7O.S.No.305 of 2022, SCJ, Wgl.

alternative relief. The suit is bad for non-joinder of necessary and proper parties to the suit. Hence, prayed for dismissal of the suit.

8.Suit against defendant No.3 is dismissed for default on 03.08.2018.

9.Having considered the rival contentions of both sides, the following issues are framed for trial.

1. Whether the plaintiff is entitled for half share in the suit schedule property as prayed for?

2. Whether the plaintiff is entitled for past and future mesne profits as prayed for?

3. Whether the suit is bad for non joinder of necessary and proper parties?

4. To what relief?

10. At trial, plaintiff examined himself as PW1 and got marked Exs.P1 to P4 (P-Series marked instead of A-Series) as such the same may be read as A-seriesand also examined his acquaintance as

PW2. Ex.B1 is marked in the cross examination of PW1. No evidence is adduced on behalf of defendants.

Heard both sides and perused the record.

ISSUES No.1 to 3:

11.As seen from the pleadings of both the parties, there is no dispute regarding relationship between the parties and the death of

Ramaiah in the year 1995 and defendant No.2 on 15.01.2017 and another wife of Ramaiah namely Narsu Bai also died and she is survived by Sarveshwar Sa, however there is dispute regarding share to the plaintiff in the suit schedule property. In order to the same, the 8O.S.No.305 of 2022, SCJ, Wgl.

plaintiff himself examined as PW1 by reiterating the entire contents of plaint in his chief examination affidavit relied on Exs.A1 to A4.

12.As seen from the plaint pleadings, it appears that plaintiff intended to challenge the earlier partition under Ex.A1/B1 and intended to re-partition the property, but, plaintiff did not specifically pleaded the same neither in his pleadings nor in the evidence. Admittedly, partition took place between plaintiff and defendant regarding suit property concensesively executed Ex.A1/B1 by them.

13.It is also the case of the plaintiff that he invested Rs.5,00,000/- for the construction of house by the defendant No.1 in the suit property, to substantiate the same apart from his oral evidence he also relied on the oral evidence of PW2, who is none other than the son-in- law of plaintiff as PW2 was given marriage with the daughter of plaintiff and so also PW2 is distant relative of plaintiff. Though PWs 1 and 2 deposed that Rs.5,00,000/- was given by plaintiff to defendant for construction of house in the suit property (exhibiting house), but during the cross examination of PW1, he has categorically admitted that there is no any written document showing the alleged transactions of

Rs.5,00,000/- giving PW1 to defendant for the construction of house, subsequently, PW1 had volunteered that as at that time there were good terms and understanding between plaintiff and defendant and they being natural brothers no written document was reduced into writing showing the payments for the construction of house. PW1 in his pleadings and evidence mentioned that the alleged contribute of

Rs.5,00,000/- for the construction of house by defendant pertains to the year 2002, but to substantiate the same plaintiff has not filed any bank statement showing that plaintiff was in possession of

Rs.5,00,000/- as on 2002 and he has been given the same to defendant for construction of house on the suit property. Though plaintiff relied on 9O.S.No.305 of 2022, SCJ, Wgl.

the oral evidence of PW2, to substantiate the same, during the cross examination of PW2, he categorically admitted that he was not present while plaintiff giving money to defendant No.1 of Rs.5,00,000/- for the construction of house which it is sufficient that the evidence of PW2 is no way helpful to the plaintiff in establishing that he contributed

Rs.5,00,000/- for the construction of house over the suit property by the defendant.

14.PW1 pleaded and deposed before the Court regarding maintenance case of their mother i.e., defendant No.2 and the same is no way helpful to the either of the party, as such this Court is not inclined to discussed anything in that regard.

15.It is specific case of the plaintiff at para 9 of his chief affidavit that, plaintiff wanted to raise his right of construction over 1st floor, the defendants started denied his legitimate right share over the suit schedule property nor furnished any copy of building permission and thereby neglected, any co-operation with the plaintiff in compliance conditions in Ex.A1/B1. But, to substantiate the same, plaintiff has not placed any record or pleaded specifically the dates on which he approached the defendant that when he intended to construct 1st floor over the suit property. Further, during the cross examination of PW1, he has categorically admitted that the condition of clause 2 at page No.5 of Ex.A1/B1 are true and correct. Further, PW1 was also admitted as per clause 5 of Ex.A1/B1 no parties to the said document have any right of easementry over the properties in it for the sake of convenience and better understanding and ad-judicature said clause of

Ex.A1/B1 are extracted here:

“2)The Northern part of the house is fell to the share of the second party and the Third party collectively and jointly such part extent is 96 sq.yds, equivalent to 10O.S.No.305 of 2022, SCJ, Wgl.

79.43 sq.mtrs., which minute details have been clearly demarcated in the Schedule ‘B’ annexed hereto and better delinated in the plan enclosed herewith. The

Second Party and the Third Party have to divide among selves the schedule annexed property, where the Third

Party is entitled to Ground floor and as extent he construct or lays the top floors and upon such construction the Second Party have the right to construct further floors upon the constructed floors of the Third

Party.

5)That no party shall be entitled to any easement or quasi-easement over the allotments made to other parties which all are hereby extinguished.”

As seen from the above clauses, it is clearly mentioned that plaintiff and defendant partitioned the property themselves in which defendant got ground floor and as extent he construct or laid top floor and upon such construction the plaintiff have the right to construct further floors upon the constructed floors of defendant. Having knowledge of the condition under clause 2 of Ex.A1/B1 plaintiff is not having any right to share in the suit property excepting raising upper floor over the suit house property in compliance that clause 2 of

Ex.A1/B1. Plaintiff ought to have been filed the suit for mandatory injunction permitting him to raise upper floors in compliance with clause 2 of Ex.A1/B1 directing the defendant to co-operate with him in compliance with the same condition, but he choose to file present suit for partition which borrowed attesting their rights long ago in the year 1999 it is under Ex.A1/B1, as such the question of again partitioning the property between plaintiff and defendant does not arise.

Accordingly, this court holds that plaintiff is not entitled for any relief as prayed. Accordingly, the issues are answered.

11O.S.No.305 of 2022, SCJ, Wgl.

In the result, the suit of the plaintiff is dismissed with costs.

Typed to my dictation by the Stenographer, corrected and pronounced by me in the open Court, on this the 25th day of September, 2024.

Sd/-

SENIOR CIVIL JUDGE,

WARANGAL.

APPENDIX OF EVIDENCE

WITNESES EXAMINED

PLAINTIFF: DEFENDANTS:

PW1: Jatling Jagadeshwar SaNone PW2: Megharaj Kishore Kumar

PLAINTIFF DOCUMENTS: Ex.A1: Certified copy of the partition deed dated 10.02.1990, No.577 of 1999. Ex.A2: Office copy of legal notice, dated 07.07.2015. Ex.A3: Postal acknowledgment. Ex.A4: Valuation Certificate.

DEFENDANTS DOCUMENTS: Ex.B1: Original registered partition deed vide Doc.No.577/1999,

dated 10.02.1999.

Sd/-

SENIOR CIVIL JUDGE,

WARANGAL.

- 1 -S.C.No.258 of 2022, ASJ, Wgl.

IN THE COURT OF THE ASSISTANT SESSIONS JUDGE, WARANGAL

AT HANUMAKONDA

Present: Sri M. Sai Kumar,

Senior Civil Judge-cum-Assistant Sessions Judge,

Warangal.

Monday, this the 30th day of September, 2024

SESSIONS CASE No.258 of 2022

1.Name of the complainant :: The State through Sub-Inspector of Police, P.S. Rayaparthy.

2.Name of the accused::

Maloth Rajender, S/o.Lachiram, Age: 30 years, Occ: Agriculture, R/o.Neelagiri Swamy Thanda, Wardhannapet.

3.Section of Law:: U/Sec.306 IPC

4.Cr.No., and P.S.:: Cr.No.50/2021; P.S., Rayaparthy

5.PRC.No.:: 33/2021

6.Name of the Officer who :: Judicial Magistrate of First Class, committed the case Thorrur.

7.Plea of the accused:: Not guilty.

8.Finding of the Court:: Not guilty.

9.Prosecution conducted by:: Sri LH. Rajeshwar Rao Addl. Public Prosecutor

10. Defence conducted by :: Sri E.Satyanarayana Reddy

This case is coming before me for final hearing on 25.09.2024 in the presence of Sri LH.Rajeshwar Rao, Additional Public Prosecutor for the State and Sri E.Satyanarayana Reddy, Counsel for the Accused; upon perusing the material papers on record and upon hearing the arguments and having stood over for determination till this day, this Court delivered the following:

J U D G M E N T

1.The Sub-Inspector of Police, P.S., Rayaparthy filed charge sheet for the offence under Section 306 of Indian Penal Code (for short IPC) - 2 -S.C.No.258 of 2022, ASJ, Wgl.

against the accused by registering in Cr.No.50/2021.

2.The brief facts of the charge sheet are that, on 30.03.2021 at 11:00 hours, the defacto complainant/LW1/Banoth Kanthamma lodged police complaint stating that on 23.03.2021 at 12:00 hours, she went to

Wardhannapet along with her daughter Banoth Sunitha, while discussing with the accused about money pertaining to case which was filed against the accused near Ambedkar Statue, Wardhannapet (in the chicken center of Ravi), meantime, the accused grew wild, lifted the chair on the ground, beat Banoth Sunitha on cheek, abused her in filthy language saying that, to commit suicide. Due to which, Banoth Sunitha got mental agony, went towards tank bund, called her younger brother over phone, went to the house on the motorcycle of her younger brother, on the same day night said Banoth Sunitha approached approached the caste elders and informed to them about the incident. Later, on the next day i.e., on 24.03.2021 at about 07.30 hours, Banoth Sunitha consumed pesticide poison, then immediately she was shifted to Laxmi Ganapathi Hospital,

Wardhannapet for treatment and on 25.03.2021 as per the advice of doctors, she was shifted to MGM Hospital, Warangal at 15:00 hours for better treatment and said Banoth Sunitha was died on 30.03.2021 at 09:35 hours, while undergoing treatment. Hence requested to take necessary action against the accused.

Basing on the above complaint, LW17/P.Nagaraju, Sub-Inspector of

Police registered a case in Crime No.50/2021 u/Sec.306 IPC and issued

FIR. During the course of investigation, LW17/S.I of Police examined and recorded the statement of LW1/Banoth Kanthamma, later visited MGM

Hospital, Warangal, collected the death intimation, visited the mortuary room where secured the presence of LW10Jarupala Shanthamma and

LW11/Banoth Ramesh, in their presence examined LW2/Banoth Raja,

LW3/guguloth Kavitha, LW4/Banoth Veeramma, LW5/Banoth Jamla, - 3 -S.C.No.258 of 2022, ASJ, Wgl.

LW6/Banoth Nanu and recorded their statements. Later, examined the dead body of deceased, held inquest over the dead body of the deceased in the presence of mediators after takign photographs by LW7/Jannu

Bixapathi and sent requisition for issuance of PME report. Later, the Sub-

Inspector of Police visited the scene of offence, examined and recorded the statement of LW6.Amgoth Bixapathi. Later examined the scene of offence and drafted crime details from in the presence of mediators

LW12/Banoth Balaji and LW13/Banoth Somla incorporating all the physical features. Later, visited the scene of offence situate at the chicken center of LW9/Bhukya Sakru, incident occurred on 23.03.2021 at 12:00 hours, examined the scene of offence and drafted crime details form in the presence of LW14/Bhukya Madhu and LW15/Hanamkonda

Yakaiah. LW16/Dr.Surender, Asst. Professor conducted autopsy over the dead body of deceased, preserved viscera and sent it to the Director,

RFSL, Warangal for examination and report. Based on RFSL report,

LW16/Dr.Surender issued final opinion stating that, the cause of death of deceased was due to “organophosphate poisoning”. On 06.05.2021

LW18/K.Vamshi Krishna, S.I of Police took up the investigation of the case and found it on proper lines. As per the orders vide Crl.M.P.No.118/ 2021, dated 06.05.2021, the accused surrendered before LW18/S.I of

Police and produced sureties, as such affected the arrest of accused and released him on bail. After completion of investigation, LW18/Sub-

Inspector of Police, filed charge against the accused.

3. Learned I Additional Judicial Magistrate of First Class, Warangal had taken cognizance for the offence U/Sec.306 IPC and issued summons to him by registering the case as PRC No.80 of 2017. After appearance of accused, he was furnished with copies of the documents as contemplated U/Sec.208 Criminal Procedure Code (for shot Cr.PC).

Later on, as the offence under Section 306 of Indian Penal Code is - 4 -S.C.No.258 of 2022, ASJ, Wgl.

exclusively triable by Court of Sessions, it was committed to the Hon’ble

Principal Sessions Judge, Warangal vide committal order dated

12.12.2017.

4.On committal of the case to the Hon'ble Principal Sessions Judge at Warangal, had taken file on record, as SC.No.87 of 2022 and made over the present case to the Court of Asst. Sessions Judge,

Mahabubabad for disposal according to law. In view of formation of new

Judicial Districts, this case has been allocated to this Court on the point of jurisdiction and numbered as S.C.258/2022.

5. On appearance of the accused, he was examined U/Sec.228

Cr.P.C., and charge U/Sec.306 IPC has been framed against him, read over and explained to him in vernacular language, for which he pleaded not guilty and claimed to be tried, hence proceeded with trial.

6.In order to bring home the guilt of the accused, prosecution examined PWs 1 and 2 and got marked Exs.P1 and P2. The learned

Addl.PP has given up the evidence of LW2/Banoth Raja, LW3/Guguloth

Kavitha, LW4/Banoth Veeramma, LW5/Banoth Jamla, LW6/Banoth Nanu,

LW7/Jannu Bixapathi, LW9/Bhukya Sakru, LW10/Jarupala Shanthamma,

LW11/Banoth Ramesh, LW12/Banoth Balaji, LW13/Banoth Somla, LW14/

Bhukya Madhu, LW15/Hanamkonda Yakaiah, LW16/Dr.Surender, Asst.

Professor, LW17/P.Nagaraju, S.I of Police and LW18/K.Vamshi Krishna,

Sub-Inspector of Police. As such, prosecution evidence was closed. No documents were exhibited on behalf of the accused.

7. After closure of the prosecution evidence, the examination of accused under section 313(1)(b) of Cr.P.C was dispensed with as no incriminating evidence was available on record.

Heard both sides and perused the record.

- 5 -S.C.No.258 of 2022, ASJ, Wgl.

8. Upon careful perusal of record, the following points arise for the determination of the court:

1. Whether prosecution could able to establish that on

23.03.2021 the accused beat the deceased Banoth Sunitha and

abused her to commit suicide, as such on 24.03.2021 at about

07:30 hours, Sunitha committed suicide by consuming poison

and she was died on 25.03.2021 at 09:35 hours, while

undergoing treatment?

2. Whether prosecution could able to establish the guilt of the accused for the offence U/Sec.306 IPC?

3. As to what result?

POINTS 1 AND 2:

9.The simple case of prosecution is that, on 23.03.2021 PW1, her husband and deceased went to Wardhannapet and while PW2 and others were conducting panchayath in the chicken center of LW9/Bhukya Sakru about the money which is to be given to the deceased by the accused about the case, meantime the accused beat the deceased with chair on her cheek and abused her saying to commit suicide, due to which, the deceased left the place, went to the house on the motorcycle of her cousin brother and informed the incident before the elders and on the next day on 24.03.2021 at about 07:30 hours, she consumed pesticide poison and she was died on 30.03.2021 while undergoing treatment. In order to prove the same, prosecution examined PWs 1 and 2, but they did not depose anything about the case facts connecting the accused with the alleged offence and so also anything against the accused. PW1, who is mother of deceased deposed that her daughter Sunitha died about 3½ years back due to acute stomach pain as such she consumed pesticide poison and committed suicide, at the time of Sunitha consuming pesticide poison, PW1 was at her agriculture fields and on knowing the information she rushed her house and found with foul smell from the mouth of - 6 -S.C.No.258 of 2022, ASJ, Wgl.

Sunitha and was vomiting as such she was shifted to MGM Hospital,

Warangal, while undergoing treatment for about 5 days, Sunitha died.

PW2 is eyewitness to the incident deposed that about 3 years back, while he was going to MGM Hospital at Wardhannapet, he heard that some woman consumed pesticide poison, but he do not know anything about other case facts. As seen from the evidence of PWs 1 and 2, there is no dispute regarding the death of deceased Banoth Sunitha by consuming pesticide poison under suicide, but there is no evidence on record connecting the death of Banoth Sunitha with that of abetment of accused as alleged by the prosecution. As such, from the evidence on record, there is no cogent evidence connecting the accused with the alleged offence. Further, as stated supra as the defacto complainant, who is mother and PW2 eyewitnesses to the incident did not depose any facts

before the Court as they turned hostile, as such the learned Addl.P.P. has

rightly given up the evidence of remaining witnesses i.e., LWs 2 to 7 and 9 to 18 as no purpose will be served even if they were examined since

PWs 1 and 2 turned hostile. Therefore, in the absence of any evidence on record connecting the accused with the alleged offence, this Court holds that prosecution utterly failed to establish the prosecution case beyond all reasonable doubt. Accordingly, the points are answered.

POINT NO.3:

In the result, accused is found not guilty for the offence punishable under Section 306 IPC. Accordingly, he is acquitted for the same under

Section 232 Cr.P.C. The bail bonds of accused shall stands cancelled subject to section 437(A) Cr.P.C.

Typed to my dictation by the Stenographer, corrected and pronounced by me in the open Court on this the 30 th day of September, 2024.

Sd/-

ASSISTANT SESSIONS JUDGE,

WARANGAL.

- 7 -S.C.No.258 of 2022, ASJ, Wgl.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE:

PW1 : B.Kanthamma, Defacto complainant None. PW2 : A.Bixapthi, Eyewitness

EXHIBITS MARKED

FOR PROSECUTION: Ex.P1 : Sec.161 Cr.P.C. statement of PW1. Ex.P2 : Sec.161 Cr.P.C. statement of PW2.

FOR DEFENCE: Nil

MATERIAL OBJECTS

Nil

Sd/-

ASSISTANT SESSIONS JUDGE,

WARANGAL.