Smt M.Shyam Sree

1

IN THE COURT OF THE I ADDL. JUNIOR CIVIL JUDGE

RANGA REDDY DISTRICT AT L.B.NAGAR.

PRESENT : SMT. M.SHYAM SREE,

I ADDL. JUNIOR CIVIL JUDGE,

RANGA REDDY DISTRICT.

TUESDAY, THE 28 th DAY OF APRIL, 2015

.S.No.1901 of 2009 O

Between:

1.Sri Goverdhan Lal Agarwal, died per L.Rs.

2.Sri Tushin Agarwal, S/o.Sri Vinod K. Agarwal, aged about 22 years, occ: Student, R/o.P.J. 33 Officers' Colony, Punjagudda, Hyderabad - 500 082.

3.Sri Aj Agarwal, S/o.Sri Vinod K. Agarwal, aged about 19 years, Occ: Student, R/o.P.J. 33 Officers' Colony, Punjagudda, Hyderabad - 500 082.

4.Smt. Lalita Devi Agarwal, W/o.Late Sri Goverdhanlal Agrawal, aged about 75 years, Occ: Household, R/o.10-2-144, Shivaji Nagar, Nizamabad - 503 001.

5.Sri Ishan Agrawal, S/o.late Sri Vijay Kumar Agarwal, Aged about 18 years, Occ: Student, R/o.10-2-144, Shivaji Nagar, Nizamabad - 503 001.

6.Miss Kriti Agrawal, D/o.late Sri Vijay Kumar Agarwal, Aged about 21 years, Occ: Student, R/o.10-2-144, Shivaji Nagar, Nizamabad - 503 001. … Plaintiffs (Plaintiffs No.2 to 4 added as per order

dated 6-2-2013 in IA No.27/2013)

AND

1.Sri K.Anja Rao, S/o.not know to the plaintiff, aged major, Occ: Retired ASP C/o.Telugu Desam Party Office, Banjara Hills, Hyderabad.

2.Smt. K.Pushpalatha, W/o.Anja Rao, aged about 51 years, Occ: housewife, R/o.Alwal, Hyderabad. … Defendants

This suit is coming on this day for hearing before me in the presence of Sri Shyam S. Agarwal, advocate for the plaintiffs and 2 Sri M.Sudheer Kumar, advocate for defendant Nos.1 & 2 and having stood over for consideration this court delivered the following:

J U D G M E N T

This is a suit filed by the plaintiffs against the defendants to to grant permanent injunction restraining the defendants, their men, relatives, friends, family members, henchmen, the persons claiming through or under the defendants and all other from interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule open land property.

2.The brief averments of the plaint are that the plaintiff is the absolute owner and possessor of all that open land property bearing plot

Nos.143 and 146 in Sy.No.32 situated at Guttala Begumpet Village,

Serilingampally, R.R.District, admeasuring 550 sq.yards. The plaintiff purchased the suit property from Sri V.Venkateswara Rao, and 4 others under the registered sale deed document No.423/1992, dated 10-01- 1992, entered in Book No.1, Volume No.2163, pages from 417 to 424 of the office of the Joint Sub-Registrar-I, Ranga Reddy District by paying valuable sale consideration. Since the date of purchase of the suit property he has been in continuous peaceful possession and enjoyment of the same. In fact the plaintiff though the said sale deed was executed on 10-01-1992, he had entered into an agreement with the agreement holders of the property and developers of the locality B.Ravindra and

Sri B.Gyaneshwar, who had received part payment of sale consideration almost about two years before the execution and registration of the sale deed in favour of the plaintiff. In fact, it was the said person who had 3 developed the entire area and sold the plots to the prospective purchasers and have been monitoring he development personally.

3.It is further submitted that subsequently the developers and the agreement holders of the entire area had formed an association of plot owners under the name and style of M/s.KVSH Enterprises, they only became its office bearers and got the association registered also vide

No.95 as the Welfare association of the owners of the plots. Several big personalities have been holding the posts of its office bearers since the date of its inception. The said Sri B.Ravindra and Sri B.Gyaneshwar have good contacts and acquaintance with big personalities.

4.It is further submitted that the plots bearing Nos.144 & 145 adjacent to the suit property were purchased by Sri Rajiv Sharma and Sri

M.L.Sudan respectively. Initially there were dispute between said persons and the plaintiff in regard to the boundaries of the plots and the plaintiff approached the Deputy director, Survey and Land Records, R.R.District for fixing the boundaries. Accordingly Deputy Inspector had conducted panchanama on 27-08-1993 and fixed the boundaries. Subsequent to that incident the disputes between the Sri Rajiv Sharma and Sri

M.L.Sudan and plaintiff were resolved and they became good family friends and decided to construct their respective houses together. In fact

Sri Rajiv Sharma and Sri M.L.Sudan being the residents of Haryana and

Delhi, they had requested the plaintiff to look after their plots and had also requested to construct a compound wall to the plots. Accordingly the plaintiff had raised a common compound wall enclosing the entire property total admeasuring 1100 sq.yards within the common compound wall, which has been intact till date and the same was constructed by the plaintiff in the year 1993, enclosing the land on plot Nos.143, 144, 145 4 and 146 in Sy.No.32. Except the said dispute with the neighbours, the plaintiff never had ay kind of dispute in respect of the suit property at any point of time and he has been in peaceful possession and enjoyment of the same to the exclusion of all others.

5.It is further submitted that he has also paid the tax to the

Government department. In view of the plaintiff having been residing at

Nizamabad, in view of his old age and in view of the death of his younger son, he could not construct the house as intended and the suit property has been lying vacant. As all the properties are lying vacant without any construction. But common compound wall has been intact, which was constructed long ago.

6.It is further submitted that the defendant No.1 is a retired

Assistant Superintendent of Police and the defendant No.2 is his wife.

The plaintiff has come to know that when the plots were demarcated and sold to prospective purchasers in the layout of the suit property, the defendant No.1 was having close intimacy with the developers thereof and he was instrumental in several dealings also. The defendant No.1 has been manipulaing and fabricating several documents in the name of the defendant No.2 and making attempts to grab them and force the owners to pay them money for settlement.

7.It is further submitted that recently, seeking the suit property as laying vacant without any development for quite a long time, the defendant No.1 developed evil eyes on the property of the plaintiff. The defendants appear to have fabricated some papers in collusion with the developers of locality and they tried to grab the property of the plaintiff.

Sri Durga Prasad Agarwal who informed the plaintiff about attempt of the 5 defendants to grab the suit property on 10-11-2006. The plaintiff came down to Hyderabad on 14-11-2006 and visited the suit property along with his son-in-law, seeing the plaintiff and others, the person of the defendants, who were making attempts to raise the heights of the compound wall, ran- away.

8.It is further submitted that the plaintiff went to the police station to lodge a complaint against the defendants in this regard, but they refused to receive the complaint stating that the matter is of civil nature and asked to approach the court of law for redressal of his grievance. Immediately the very next day on 15-11-2006 the son-in-law of the plaintiff received a call from the defendant No.1 stating that he had purchased the suit property in the name of the defendant No.2 and he threatened the plaintiff with dire consequences. The plaintiff and his son- in-law wanted to explaining the defendant No.1 about their right, title, interest and possession over the suit property along with papers, but the defendant No.1 refused to look into them and stated that he knows about the same and he has already prepared documents in the name of the defendant No.2 and he can manage at all the stages and in all the

Government departments and nobody can question the documents in favour of his wife.

9.It is further submitted that the defendant No.1 told the plaintiff that in the even, the plaintiff wants to retain the suit property with him, he shall have pay to the defendant No.1 an astronomical figure of money, which is in fact beyond the financial capacity of the plaintiff.

The defendant No.1 again called the plaintiff and his son-in-law on phone, threatened and warned of dire consequences, in the even the plaintiff takes any legal steps or lodges any police complaint against them. The 6 defendant No.1 asked the plaintiff to sign some papers to sell the suit property to him offering to pay the amount for which the plaintiff purchased the suit property. The plaintiff refused to sell the suit property to the defendants. Again the defendant No.1 gave threats and warnings to the plaintiff. The plaintiff being the lawful owner and in peaceful possession and enjoyment of the suit property, he is entitled to protect his possession from illegal dispossession and the attempts of grabbing.

The plaintiff cannot be thrown out of the suit property by the defendants under any circumstances. The defendants have no manner of right, title, interest etc., in and over the suit property and they cannot interfere with the possession of the plaintiff over the same. Hence the plaintiff filed the present suit.

10. The brief averments of the written statement filed by the defendant No.2 are that she is the absolute owner and possessor of open plot of land bearing plot No.146, admeasuring 275 sq.yards covered by compound wall all around forming part of layout in Sy.No.32 of Guttala

Begumpet Villae, Serlingampally Mandal, R.R.District and same was purchased by this defendant from its original owners and possessors Sri

V.Venkateshwar Rao and other for a valuable consideration through registered sale deed vide document No.13118/1990, dated 11-06-1990.

Ever since then the plaintiff has been in continuous and exclusive possession and enjoyment of the suit property. The plaintiff in the above suit is claiming to have purchased the suit plot No.146 from the Vendors of this defendant in the year 1992 under registered sale deed document

No.423/1992, dated 10-01-1992.

11.It is further submitted that the vendors of the plaintiff have no right over the said plot No.146 as they have already parted their title 7 and possession in favour of this defendant as early as in the year 1990, and therefore, no title passed on to the plaintiff herein in respect of the said plot No.146. As the plaintiff has no title over the said plot No.146, and this defendant is the real owner of the said plot No.146 admeasuring 275 sq.yards. The plaintiff herein is not entitled for any relief. This defendant is nothing to do with the other plot bearing Nos.143. In fact when the plaintiff attempted to interfere with the possession of this defendant, this defendant had filed O.S.No.349/2006 on the file of Addl.

Junior Civil Judge, Ranga Reddy District at L.B.Nagar and obtained injunction. Similarly when the son-in-law of the plaintiff namely Sri Vinod

Kumar Agarwal, tried to interfere with her possession another suit in

O.S.No.2991/2006 was filed by this defendant on the file of above court

and both the above suits are pending.

12.It is further submitted that this defendant has been in possession and enjoyment of the plot No.146 right from the date of her purchase in the year 1990 and that the compound was also constructed by this defendant. The plaintiff having been fully aware of the purchase of plot No.146 by this defendant, suppressed the said fact and filed the above suit with malafide intention. The said B.Ravindra and

B.Gyaneshwar are nothing to do with the suit property much less plot

No.146. The the plaintiff is nothing to do with the plot No.146 and this defendant has been in peaceful possession and enjoyment of the same and an absolute owner and the plaintiff is not at all entitled to make any construction over the said plot. Hence this defendant denied all other allegations and finally prayed for dismissal of the suit. The defendant

No.1 was adopted the written statement filed by the defendant No.2.

8 13.Basing on the rival contentions this court framed the following issues:

1. Whether the plaintiff is entitled for perpetual injunction as prayed for ?

2. To what relief ?

14.At the event of trial on behalf of plaintiffs PW.1 & PW.2 got examined and got marked Exs.A1 to A12. On behalf of defendants DW.1 got examined and got marked Ex.B1 to B6.

15.Heard the counsel for the plaintiffs and defendants.

16. Issue No.1:- Whether the plaintiff is entitled for perpetual injunction as prayed for ?

17.This suit is filed by the deceased 1st plaintiff claiming ownership and possession over the suit plots which are 143 and 146 in

Sy.No.32. The defendants do not claim ownership nor possession over the plot No.143, but their claim is that the 2nd defendant had purchased the suit plot No.146 in Sy.No.32. So as seen from these contentions it is apparent that there is no dispute with regard to the plot No.143 and that both the plaintiffs and 2nd defendant are claiming title and possession over the plot No.146. Originally both plots i.e., 143 & 146 belongs to one

Sri V.Venkatswara Rao, V.Narasimha, V.Pochaiah, V.Rajaiah and

V.Ramulu. It is also not in dispute that the above said five persons had appointed a GPA holder by name P.Mallesha.

18.This suit is filed for mere injunction, but to adjudicate the same, title of the parties need to be gone into incidentally, without which 9 no apt finding can be given. The document through which the 1st plaintiff is claiming title and ownership is Ex.A1 which is a registered sale deed executed by Sri V.Venkatswara Rao, V.Narasimha, V.Pochaiah,

V.Rajaiah and V.Ramulu, represented by their GPA holder P.Mallesha in the year 1992 for the plot Nos.143 & 146. The 1st plaintiff also filed

Ex.A2 which is the panchanama of survey of demarcating the plots under application made by the 1st plaintiff. But except Ex.A1, the other documents i.e., Exs.A2 to A12 do not establish the possession of the 1st plaintiff. (Admittedly the schedule plots are vacant. So Ex.A1 itself gains importance). By the time trial was commenced the 1st plaintiff expired, so he is not available to give evidence and PW.1 who is his son-in-law was examined as PW.1, but he has no personal knowledge regarding the sale transaction which is in dispute. Though PW.2 supported the case of the plaintiffs, unless the plaintiffs establishes their right, the evidence of PW.2 will in no way helpful to the plaintiffs.

19.Plaintiff averred in the plaint that the registered document was executed in his favour in the year 1992, but two years prior to the execution of the said documents itself he has made part payment and possession was delivered to him. By this averment it is clear that the 1st plaintiff is aware prior to the filing of the suit itself regarding the existing of Ex.B2 that is a registered sale deed executed in the 1990 for plot

No.146 in Sy.No.32 by Sri V.Venkatswara Rao, V.Narasimha, V.Pochaiah,

V.Rajaiah and V.Ramulu, represented by their GPA holder P.Mallesha. As they are aware that there is a registered document in existence which was executed prior to their document, the plaintiffs ought to have chosen to add their vendors and GPA holder to give a finality to the litigation in between both the parties, but had come up with a simple suit, in which 10 these complex issues cannot be decided. However the defendants had filed registered document which was executed in the year 1990 which reveals that the possession over the plot No.146 has been delivered to the 2nd defendant in the year 1990 itself. Once Ex.B2 was executed the title and the possession of the vendors or the executants of Ex.A1 has been seized and they have no right or title to pass it to somebody else subsequent to the execution of Ex.B2. The persons whose names were averred by the plaintiff in his plaint i.e., the persons alleged to be developing the locality i.e., B.Ravindra and Sri B.Gyaneshwar, who according to the plaintiff also received part of the sale consideration from the plaintiffs were only the attestors of Ex.B2 and also to that of Ex.A1.

But the plaintiff did not choose to initiate any criminal action against any of the persons who had entered into a subsequent transaction, but simply chosen the defendants who had purchased the schedule plot under a registered document by paying valuable consideration. Registration of a document itself is a deemed notice. So it is deemed that the 1st plaintiff is aware of the existence of the Ex.B2 by the date of execution of Ex.A1 in his favour. The plaintiff without establishing his right or possession over the schedule plot No.146, tried to project that the defendants as tress passers and violators of the court order. Whereas even the defendants had approached the court seeking relief vide separate suit.

20.Apart from that the defendants had also filed Ex.B3: Original endorsement dated 07-02-2011, issued by Spl. Officer and Competent

Authority, Urban Land Ceiling, Ex.B4: Original proceedings, dated 30-06- 2011 issued by Commissioner GHMC under layout Regulations scheme and Ex.B6: G.O.Ms.No.40, Revenue (UC-III), Department, dated 17-01- 2011, which reveals that the 2nd defendant had paid the regularization 11 fee and that plot No.146 in Sy.No.32 had been regularized in the name of 2nd defendant. But the plaintiff except filing Ex.A1 had not choose to file any other document to disprove the version of the defendants mentioning of different dimensions for plot No.46 in the plan of Ex.B2 and Ex.A1 do not bare any impact, as the extent, location and identity are not in dispute, more particularly when it is not part of pleadings, plaintiffs are barred from adducing any evidence on these lines. Therefore the plaintiff failed to establish his possession over the plot No.146 in Sy.No.32, so interference by the defendants does not arise. As admittedly there is no claim against the plot No.143 and as the litigation is on in between the parties it is need of the plaintiffs to protect their plot though not in dispute. Accordingly issue No.1 is answered.

21. Issue No.2:- To what relief ?

22.In the result, suit is partly decreed granting perpetual injunction against the defendants over the plot No.143 in Sy.No.32. The suit claim with regard to the plot No.146 is hereby dismissed. Both the parties do bear their own costs.

Dictated to the personal assistant transcribed by her, corrected and

pronounced by me in the open court on this 28th day of April, 2015.

I Addl. Junior Civil Judge Ranga Reddy District.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

On behalf of the Plaintiffs:

PW.1: Sri Durga Prasad Agarwal

PW.2: Sri Rajneesh Sharma 12 On behalf of the Defendants:

DW.1: Smt. K.Pushpalatha

EXHIBITS MARKED

On behalf of the Plaintiffs:

Ex.A1: CC of registered sale deed bearing doc.No.423/1992, dt:10-01-1992.

Ex.A2: CC of panchanama of Survey and demarcation dated 27-08-1983.

Ex.A3: CC of tonch plan, of Sy.No.32.

Ex.A4: Receipt of payment of land tax.

Ex.A5: Original GPA, dt:20-10-2006.

Ex.A6: CC of Will, dated 11-06-2000.

Ex.A7: Original Death certificate, dated 02-06-2012.

Ex.A8: Original GPA, dt:27-06-2012.

Ex.A9: Original GPA, dt:02-08-2012.

Ex.A10: Photographs (11 Nos.) along with CD.

Ex.A11: Police complaint, dt:04-11-2007.

Ex.A12: Police complaint, dt:02-07-2012.

On behalf of the Defendants:

Ex.B1: Photograph (1).

Ex.B2: CC of registered sale deed doc.No.13118/1990, dt:11-06-1990.

Ex.B3: Original endorsement dated 07-02-2011, issued by Spl. Officer and

Competent Authority, Urban Land Ceiling.

Ex.B4: Original proceedings, dated 30-06-2011 issued by Commissioner GHMC under layout Regulations scheme.

Ex.B5: Certified copy of order in IA No.501/2006 in OS No.349/2006,

dt:8-2-2006.

Ex.B6: G.O.Ms.No.40, Revenue (UC-III), Department, dated 17-01-2011.

I Addl. Junior Civil Judge Ranga Reddy District.

13

1

IN THE COURT OF THE I ADDL. JUNIOR CIVIL JUDGE

RANGA REDDY DISTRICT AT L.B.NAGAR.

PRESENT : SMT. M.SHYAM SREE,

I ADDL. JUNIOR CIVIL JUDGE,

RANGA REDDY DISTRICT.

WEDNESDAY, THE 6th DAY OF MAY, 2015.

O.S.No.1613 of 2007

Between:

1.Mirza Hashim Alibaig, S/o.Mirza Ibrahim Ali Baig, aged 20 years, Occ: Student, R/o.H.No.19-3-262A/50/102, Mustafa Nagar, Vottapally, Hyderabad, A.P.

2.Mirza Inayath Ali Baig, S/o.Mirza Ibrahim Ali Baig aged 14 years, Occ: Student, R/o.H.No.19-3-262/A/50/102, Mustafa Nagar, Vottapally, Hyderabad, A.P.

3.Mirza Osman Ali Baig, S/o.Mirza Ibrahim Ali Baig aged 9 years, Occ: Student, R/o.H.No.19-3-262/A/50/102, Mustafa Nagar, Vottapally, Hyderabad, A.P.

Plaintiffs No.2 & 3 being minors, rep.by their father and natural guardian Mirza Ibrahim Ali Baig R/o.H.No.19-3-262/A/50/102, Mustafa Nagar, Vottapally, Hyderabad, A.P. … Plaintiffs AND Hazrath Rao, S/o. Not known, aged 50 years, Occ: Business, R/o.Door No.11-5-423, Shamshiri Estate Lakdi Ka Pull, Hyderabad, A.P. … Defendants

This suit is coming on this day for hearing before me in the presence of Sri Md. Rahamath Ali, advocate for the plaintiffs and

Sri A.Mahesh Kumar, advocate for defendant and having stood over for consideration this court delivered the following:

J U D G M E N T

This is a suit filed by the plaintiffs against the defendant to grant mandatory injunction directing the defendant to remove the parapet wall to the extent of 10 feets, over the boundaries separating 2 his land and plaintiff's lands and to grant perpetual injunction restraining the defendant, his agents or any person claiming through him from obstructing the plaintiffs from their right or way to reach suit schedule property.

2.The brief averments of the plaint are that the plaintiffs are the owners and occupiers of Agricultural land in Sy.No.118 admeasuring

Ac.3-18 gts., situated at Jalpally Village, Saroornagar Mandal, R.R.District and they are cultivating their lands by passing over the lands of the defendant which lie from north to West of the plaintiff's land, without any obstruction or any interruption for many years.

3.It is further submitted that the defendant carries the business of real estate under the name and style of "GREEN HOME" and purchased his lands only a few months back and approached the plaintiffs to purchase their lands, but they refused to sell away their lands. Therefore the defendant had illegally converted the agricultural land for non-agricultural purposes and started constructing parapet wall on the boundaries separating his land and the plaintiffs land. If the defendant completely carried out the construction of parapet wall the plaintiff's easement right such as right of ingress and agrees would be affected.

4.It is further submitted that the plaintiffs have a right of easement to pass through the lands of the defendant and that this right was exercised not only by the plaintiffs but also their predecessors. It is also an easement by necessity. The defendant had no right to obstruct or present the plaintiffs from exercising the right which was being exercised from time immemorial. The plaintiffs have every right to seek 3 access to reach their lands for their peaceful and beneficial enjoyment.

The plaintiffs are also entitled for perpetual injunction restraining the defendant from obstructing the plaintiffs. The plaintiffs approached the defendant requesting him to leave some space between the parapet walls for the plaintiffs to have access to their land, but the defendant refused to meet them. Upon that the plaintiffs got issued registered legal notice dated 19-12-2006 to the defendant. Hence the plaintiffs filed the present suit.

5. The brief averments of the written statement filed by the defendant are that the defendant is not aware as to the plaintiffs being the owners of agricultural land admeasuring Ac.3-18 gts., in Sy.No.118 situated at Jalpally village. The defendant is involved in the business of

Real Estate under the name and style of "Green Homes" and purchased his lands. The plaintiff is claiming the land Ac.3-18 gts., in Sy.No.118 of

Jalpally village and coming to the schedule of property the plaintiff alleges that the said land is falling within the ambit of Sy.No.48 which itself shows that the plaintiffs at no point of time enjoyed any easementary right more particularly the alleged easement by necessity.

Even prior to filing of the suit the defendant had already completed the construction of compound wall encircling the entire land purchased by him.

6.It is further submitted that the plaintiffs never enjoyed any right of easement more particularly the alleged easement right necessity either by himself or their predecessors in title and when such is the case the question of the defendant trying to obstruct or prevent the plaintiffs from exercising the alleged right which was enjoyed by the 4 plaintiffs from time immemorial does not arise. This defendant at no point of time received any legal notice from the plaintiffs. The plaintiffs failed to specify the scheduled with boundaries of the alleged easementary right enjoyed by them over the land purchased by this defendant. The plaintiffs have also not filed any sketch showing the subsistence of the alleged right of easement by necessity enjoyed by them over the land of the defendant to reach their fields.

7.It is further submitted that this defendant had purchased a land admeasring Ac.0-13 gts., in Sy.No.122, situated at Jalpally village,

Saroornagar Mandal, Ranga Reddy District apart from other lands for valid sale consideration under registered sale deed vide document

No.7752/2006, dated 06-04-2006. Immediately after such purchase the defendant constructed compound wall encircling the said land purchased by it including the other lands. The plaintiffs after purchase of land by this defendant mounted pressure on this defendant to part with the said land which was not entertained by this defendant, hence the plaintiffs filed the present suit with false allegations.

8.It is further submitted that the road from Jalpally to

Mamidipally lies on the north-south direction to the land allegedly owned by the plaintiffs and there is also an approach road in east-west direction from the main road to the land owned by the plaintiffs and thus there is abundant access to the lands as such the above suit is liable to be dismissed. The sale deeds filed by the plaintiffs does not disclose as to the existence of the alleged easementary right of way by necessity enjoyed by them over the land of this defendant which itself is sufficient that the intention of the plaintiffs is tainted with malafides. The 5 plaintiffs failed to prove any of the ingredients of the section 13 of the law of easements and licenses which which deals with easement of necessity. If really assuming for a moment without admitting that the plaintiffs enjoyed the alleged right of easement over the land of this defendant then nothing prevented from making the vendors of this defendant as parties to the above suit and the non-arraying of the vendors of this defendant as parties to the above suit tantamounts to non-joinder of necessary parties. Hence this defendant denied all other allegations and finally prayed for dismissal of the suit.

9.Basing on the rival contentions this court framed the following issues:

1. Whether the plaintiffs are entitled for mandatory injunction as prayed for ?

2. Whether the plaintiffs are entitled for perpetual injunction as prayed for ?

3. To what relief ?

10.At the event of trial on behalf of plaintiffs PW.1 to PW.4 got examined and got marked Exs.A1 to A12. On behalf of defendants DW.1 got examined and got marked Ex.B1 to B7.

11.Heard the counsel for the plaintiffs and defendant.

12. Issue Nos.1 & 2:-

1. Whether the plaintiffs are entitled for mandatory injunction as prayed for ? AND

2. Whether the plaintiffs are entitled for perpetual injunction as prayed for ?

6

13.This suit is filed by the plaintiffs claiming that they are the owners and occupiers of Agricultural land situated in Sy.No.118 admeasuring Ac.3-18 gts., to which the defendant land lies towards north-west and that the plaintiffs are using the said land for the ingress and egress, defendant after purchasing the land had constructed the wall over the boundary denying the access to the schedule property.

Therefore the plaintiffs sought relief of mandatory injunction for removal of the wall and also perpetual injunction to restrain the defendant from obstructing the plaintiffs from their right of way. To which the defendant filed written statement admitting that he is doing Real Estate business under the name and style of "Green Homes" and that he had completed the construction of compound wall encircling the entire land of 13 guntas in Sy.No.122 purchased by him and easementary right does not arise in the present case as the plaintiffs and defendant had purchased their respective lands from different vendors. So this suit is liable for dismissal.

14.However it is the burden of the plaintiffs to establish their right of way over the land of the defendant. In order to do so they got examined PW.1 to PW.4 on their behalf and got marked Exs.A1 to A12 which are Ex.A1: Photographs with negatives, Ex.A2: Postal receipt and acknowledgment, Ex.A3: CC of sale deed bearing doc.No.4170/1998,

dt:11-08-1998, Ex.A4: CC of sale deed bearing doc.No.4168/1998, dt:11-

08-1998, Ex.A5: CC of sale deed bearing doc.No.4169/1998, dt:11-08- 1998, Ex.A6: CC of title deed in the name of Mirza Hashim Ali Baig,

Ex.A7: CC of title deed in the name of Mirza Inayath Ali Baig, Ex.A8: CC of title deed in the name of Mirza Osman Ali Baig, Ex.A9: Office copy of notice dated 19-12-2006, Ex.A10: CC of Judgment and decree in OS 7 NO.128/1984, dated 28-4-1984, Ex.A11: CC of pahanies (9 Nos.) and

Ex.A12: Photographs (3 Nos.) along with negatives.

15.Exs.A3 to A5 are the certified copies of sale deeds executed in favour of 1 to 3 plaintiffs for the schedule property and consequently title deeds were also issued in their names for the property covered under Exs.A6 to A8 (i.e., suit schedule property). To establish the flow of title the plaintiffs got marked Exs.A10 which is a judgment and decree passed in the partition suit vide OS No.128/1984 in which to the vendor of the plaintiffs Ac.13-11 gts., was allotted in Sy.No.117, 118 and 120.

After passing of judgment and decree in partition suit Exs.A3 to A5 were executed. As seen from the schedule of Exs.A3 to A5 boundaries were shown as neighbour's land. So for the property that was covered under

Ex.A3 to A5 i.e., schedule property there is no access to road from any of its sides. Whereas is the the averment in the written statement that there is a approach road east-west direction from the main road to the land owned by the plaintiffs and as such there is access to the land of the plaintiffs. But except the pleading there is no evidence let in on behalf of the defendant to rebut the evidence of plaintiffs to show that there is an alternative way available to the plaintiffs apart from access through the land of the defendant.

16.The plaintiffs examined PW.3 and PW.4 to establish their right. PW.3 stated that in the year 2006 the defendant raised compound wall and denied specifically that there is alternative way to the plaintiffs land. PW.4 who also have agricultural land in Sy.No.121 and 122 also stated that there is a road towards southern side of the Sy.No.118 and 112 and that the defendant immediately after purchasing the land 8 constructed the wall and that the wall constructed by the defendant is towards southern side of the defendant's land and towards western of his land. He specifically stated that he is using the land of the neighbours to reach the road. Therefore the evidence of PW.3 & PW.4 corroborates the evidence of PW.1 & PW.2 in all aspects. Not only the evidence of PW.4, but it is the usual practice for agricultural lands that the person who have the agricultural land away from the road use the agricultural land of the neighbours whose land intervening, to reach the road, if the persons whose land is situated facing the road denies the access the agriculturists cannot cultivate their respective lands except those to whose land road is situated on any of its boundary.

17.It is apparent from Exs.A3 to A5 that there is no road as a boundary to the schedule property. The cross-examination was done on the aspect that Sy.No.122 was not shown on any of the boundaries in

Exs.A3 to A5 and also was argued that on this ground the suit is liable for dismissal. But as seen from the boundaries of Exs.A3 to A5 it is not only Sy.No.122 none of the survey numbers of the boundaries land has been mentioned except as neighbours land. If really the defendant's land is not adjacent to the plaintiffs land, this would be the main defence of the defendant in the written statement. But he nowhere denied that his land is not situated adjacent to the land of the plaintiffs. Adding to this he stated that as the vendors of himself and the plaintiffs are different, they cannot claim the easement of necessity, which shows that both lands are situated adjacent to each other.

18.Though PW.1 in his cross-examination stated that his vendor also owns land in Sy.No.122, but it do not reflect in Ex.A10 through 9 which the plaintiffs vendor claim right and title over the schedule property. Therefore it can be concluded that the vendors of plaintiffs and defendant are different. As seen from the flow of title of the defendant it is through Ex.B7 the defendant had purchased an extent of

Ac.1-39 gts., in Sy.No.121; 13 guntas in Sy.No.122 and Ac.3-24 gts., in

Sy.No.127 total admeasuring Ac.5-36 gts., to which towards Western side there is a road leading from Mamidipally to Jalpally and on other three sides North, South and East it is agricultural lands. Exs.B1 to B6 are the link documents to Ex.B7. However the title is not in dispute. But as seen from these boundaries also it is apparent that it is only towards

Western side of defendant's land the road is situated and it is also apparent that the land which was purchased by the defendant is agricultural land in nature and admittedly the defendant is involved in

Real Estate Business under the name and style "Green Homes" and hence he purchased the land. But he did not file any document to show that he converted the agricultural land into a commercial nor that he obtained any layout. If it is done the right of access or way of the agricultural land abutting to the schedule property would be taken care of concerned authorities. But the defendant though had purchased the agricultural land is not doing cultivation and kept it for commercial purpose and that too without obtaining any permissions. So this compelled the plaintiffs to approach the court to protect their right of way. No doubt as argued by the defendant that as both the properties do not belongs to the same owner. The plaintiffs are not entitled for the easement right in view of Section 13 of Indian Easement Act. But at the same time the plaintiffs are entitled for the right by prescription because it is in the year 1984 the partition decree that was passed and prior to 10 that also the agriculture was being carried on without any disputes regarding ingress and egress to the schedule property. However even if we take the period when the right accrued to the plaintiff's vendor also it was in the year 1984, therefore by the year 2004 the prescribed period of 20 years has been completed and it is admitted fact that the defendant immediately after purchasing his property has constructed the compound wall i.e., in the year 2006. So it is in the year 2006 the plaintiffs were obstructed from using the way into their land.

19.The defendant had choosen to file only certified copies of sale deeds which do not speak of any alternative way to the plaintiffs land. The plaintiffs had adduced not only Exs.A3 to A5 to establish the boundaries, but also PW.3 and PW.4 to support their version that there is no other alternative way to approach the schedule property. The burden casts upon the defendant to adduce evidence to establish that there is a alternative road to the plaintiffs, atleast by examining any Revenue

Official to establish the fact, but except taking the oral plea the defendant did not choose to adduce any evidence. For a moment if we take the version of the defendant is true that there is other alternative way available to the plaintiffs. Then why will they take all the strain to approach the court and room around for 10 long years at the costs of their money and time. No explanation. It is in the year 2006 the defendant had purchased the said land and even till date the defendant had not choosen to take any sort of permissions nor carrying on any sort of activity upon the property purchased by him, except constructing the compound wall to his entire property. However the plaintiffs established their right of way over the defendant's land to reach the road and it is also mentioned that it is of 10 feet wide that has been obstructed by the 11 defendant which is not more than that of a cart way. Therefore the plaintiffs are entitled for the relief as prayed by them. Accordingly issue

Nos.1 & 2 are answered.

20. Issue No.3:- To what relief ?

21.In the result, suit is decreed with costs directing the defendant to remove the parapet wall to the extent of 10 feet, over the boundaries separating his land and plaintiff's lands and also granting perpetual injunction restraining the defendant, his agents or any person claiming through him from obstructing the plaintiffs from using the way to reach suit schedule property.

Dictated to the personal assistant transcribed by her, corrected and

pronounced by me in the open court on this 6th day of May, 2015.

I Addl. Junior Civil Judge Ranga Reddy District.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

On behalf of the Plaintiffs:

PW.1: Mirza Hashman Ali Baig

PW.2: Mirza Ibrahim Ali Baig

PW.3: B.Jangaiah

PW.4: P.Yadagiri

On behalf of the Defendant:

DW.1: K.Koteshwara Rao

EXHIBITS MARKED

On behalf of the Plaintiffs:

Ex.A1: Photographs with negatives.

Ex.A2: Postal receipt and acknowledgment.

12 Ex.A3: CC of sale deed bearing doc.No.4170/1998, dt:11-08-1998.

Ex.A4: CC of sale deed bearing doc.No.4168/1998, dt:11-08-1998.

Ex.A5: CC of sale deed bearing doc.No.4169/1998, dt:11-08-1998.

Ex.A6: CC of title deed in the name of Mirza Hashim Ali Baig.

Ex.A7: CC of title deed in the name of Mirza Inayath Ali Baig.

Ex.A8: CC of title deed in the name of Mirza Osman Ali Baig.

Ex.A9: Office copy of notice dated 19-12-2006.

Ex.A10: CC of Judgment and decree in OS NO.128/1984, dated 28-4-1984.

Ex.A11: CC of pahanies (9 Nos.)

Ex.A12; Photographs (3 Nos.) along with negatives.

On behalf of the Defendant:

Ex.B1: CC of AGPA dt:18-01-2005 vide doc.No.395/2005.

Ex.B2: CC of sale deed bearing doc.No.1128/2005, dt:09-02-2005.

Ex.B3: CC of sale deed bearing doc.No.1129/2005, dt:09-02-2005.

Ex.B4: CC of sale deed bearing doc.No.1648/2005, dt:22-02-2005.

Ex.B5: CC of sale deed bearing doc.No.1649/2005, dt:22-02-2005.

Ex.B6: CC of sale deed bearing doc.No.1650/2005, dt:22-02-2005.

Ex.B7: CC of sale deed bearing doc.No.7752/2006, dt:06-04-2006.

I Addl. Junior Civil Judge Ranga Reddy District.

1

IN THE COURT OF THE I ADDL. JUNIOR CIVIL JUDGE

RANGA REDDY DISTRICT AT L.B.NAGAR.

PRESENT : SMT. M.SHYAM SREE,

I ADDL. JUNIOR CIVIL JUDGE,

RANGA REDDY DISTRICT.

FRIDAY, THE 8th DAY OF MAY, 2015.

O.S.No.47 of 2013

Between:

P.Vasantha, W/o.Late Venkatesham D/o.S.P. Prem Sagar, Aged about 42 years, Occ: Household, R/o.h.No.12-11-1188, Bounda Nagar, Warasiguda, Hyderabad. … Plaintiff AND

A.V.Bhaskar Rao, S/o.Late A.A.Somayajulu, Aged about 41 yeas, Occ: Govt.Employee, R/o.8-63, Sri Sai Nagar, Balapur, Hyderabad. … Defendant

This suit is coming on this day for hearing before me in the presence of Sri J.Vijay Kumar Goud, advocate for the plaintiff and

Sri K.Govind Reddy, advocate for defendant and having stood over for consideration this court delivered the following:

J U D G M E N T

This is a suit filed by the plaintiff against the defendant to grant perpetual injunction restraining the defendant, his workmens, agents, servants, henchmen etc., or any other person or persons claiming through them from interfering in the possession of the plaintiff over the suit schedule property.

2.The brief averments of the plaint are that the plaintiff is the the absolute owner and possessor of the land bearing plot No.11 in

Sy.No.766, admeasuring 300 sq.yards situated at Others area Nadergul village and Grampanchayath, Saroornagar Mandal, Ranga Reddy 2 District, having purchased the same under a registered sale deed bearing document No.17398/2006, dated 24-08-2006 from Sadanand the GPA holder and registered agreement of sale cum GPA holder of

Sumitra Devi and the said Sumitra Devi purchased the same from the

Lokayata Co-Op. Housing Society Limited under registered sale deed bearing document No.4134/1981, dated 5-6-1981. Since the date of purchase the plaintiff is in possession and enjoyment of the suit schedule property as absolute owner.

3.It is further submitted that the defendant has no right, title or interest over the suit schedule property, tried to grab the same. On 6-1-2013 and again on 20-01-2013 the defendant along with his associates came to the suit schedule property and tried to interference with the possession of the plaintiff over the suit schedule property.

However the plaintiff resisted his illegal attempts, the defendant while leaving the place threatened the plaintiff with dire consequences.

Immediately the plaintiff approached the concerned P.S., and reported the matter, but they did not take any action as the matter is of civil nature. Hence the plaintiffs filed the present suit.

4. The brief averments of the written statement filed by the defendant are that the plaintiff is stranger till now, this defendant has never seen her till today. The defendant has purchased the suit schedule property from Sri R.Vilas Rao Naidu through registered sale deed document bearing No.8930/2002 and since the date of purchase he is in continues possession of the same without any interference. The vendor of this defendant had purchased the same from his vendor by name Smt. Sumitra Devi, through registered sale deed document 3 No.1650/1996, dated 24-04-1996, and she inturn had purchased the same from Lokayata Co-operative Housing Society through the registered sale deed document No.4134/1981, dated 05-06-1981.

5.It is further submitted that the plaintiff's vendors vendor's had already sold the suit schedule property in the year 1996, itself to the defendant vendor and again she has no right or title to transfer the same in favour of the plaintiff vendor and who transferred the same in favour of the plaintiff without any title and right and the plaintiff will not get any right or title in the suit schedule property. With the help of the created and bogus documents the plaintiff filed the present suit to grab the suit schedule property. The plaintiff did not approach this Hon'ble

Court with clean hands. Hence the defendant denied all other allegations and finally prayed for dismissal of the suit.

6.Basing on the rival contentions this court framed the following issues:

1. Whether the plaintiff is in possession and enjoyment of the suit schedule property ?

2. Whether the plaintiff is entitled for permanent injunction as prayed for ?

3. To what relief ?

7.At the event of trial the plaintiff got examined herself as

PW.1 and got examined PW.2 and got marked Exs.A1 to A8. On behalf of defendant DW.1 and DW.2 got examined and got marked Ex.B1 to B4.

8.Heard the counsel for the plaintiff and defendant.

4

9. Issue No.1:- Whether the plaintiff is in possession and enjoyment of the suit schedule property ?

10.This suit is filed by the plaintiff claiming ownership and possession over the suit schedule property and that the defendant without having any right trying to interfere with her possession over the suit schedule property. Whereas the defendant filed written statement that he had purchased the schedule property prior to that of the plaintiff and since then he is in the possession and enjoyment of the schedule property. The relief sort by the plaintiff in this suit is only perpetual injunction, so it is the burden of the plaintiff to establish her physical possession over the suit schedule property. In order to do so she got examined herself as PW.1 and got examined GPA holder as PW.2 and got marked Exs.A1 to A8 which are Ex.A1: CC of sale deed bearing doc.No.17395/2006, dt:24-8-2006, Ex.A2: CC of agreement of sale cum-

GPA bearing doc.No.13260/2006, dt:26-06-2006, Ex.A3: CC of sale deed bearing doc.No.4134/1981, dt:5-6-1981, Ex.A4: Copy of police complaint, Ex.A5: Certificate issued by Inspector of Police, dated 03-05- 2006, Ex.A6: Encumbrance certificate from 1995 to 2007, Ex.A7:

Encumbrance certificate from 1980 to 1982 and Ex.A8: Photographs (5

Nos.) along with C.D.

11.It is through Ex.A1 she had purchased the schedule property from the GPA holder in the year 2006, to which the link document is

Ex.A2 GPA-cum- agreement of sale executed in favour of PW.2 in the same year i.e., 2006 and in pursuance of this Ex.A2 he had executed

Ex.A1. It is an admitted fact that one Sumitra Devi who was the original owner of the schedule plot and she had purchased the same in the year 5 1981 from Lokayata Co-operative Housing Society. So both the plaintiff and defendant are claiming title through Sumitra Devi. As seen from these documents it appears that the flow of title in favour of the plaintiff is clear. But the ambiguity arises only after perusal of the documents marked through defendant. He had produced the original sale deed executed in favour of Sumitra Devi by the Lokayata Co-operative

Housing Society and the same is marked as Ex.B1 and the same Sumitra

Devi had executed a registered sale deed for the schedule plot in favour of one Vilas Rao Naidu in the year 1996 and the defendant herein had purchased the schedule plot under Ex.B3 from Vilas Rao Naidu in the year 2002 i.e., prior to the execution of the GPA Ex.A2 in favour of PW.2.

So the validity of the title has to be looked into to adjudicate the dispute in between parties because both plaintiff and defendant relied upon the registered sale deeds even for establishing their physical possession over the schedule plot. No other evidence is adduced by either of the parties to conclude who is in the physical possession of the schedule property. In Ex.B3 there is a clause that the possession was delivered to the defendant in the year 2002 itself. Whereas in the year 2006 the possession was delivered to the GPA holder by Sumitra Devi, whereas she had parted with the possession in the year 1996 itself, while executing Ex.B2. In all the documents filed by the plaintiff Sumitra Devi had affixed her thumb impression. Whereas in Ex.B2 registered sale deed executed by her, she had written her name. In the year 1981 admittedly Sumitra Devi had purchased the schedule property under

Ex.B2 in which the occupation of Sumitra Devi was shown as Private

Employee. So whether she is an illiterate or not is not on record.

However as the plaintiff had approached the court it is her burden to 6 implead the said Sumitra Devi also to the suit to bring out the facts. But the plaintiff did not choose to file a comprehensive suit nor added the

Sumitra Devi as party and filed simple suit of injunction for which she is not entitled. The oral evidence of PW.2 do not help the plaintiff in any manner as he is a GPA holder who had executed sale deed in favour of the plaintiff and one cannot expect that he can speak anything contra to the version of the PW.1. Accordingly issue No.1 is answered.

12. Issue No.2 :- Whether the plaintiff is entitled for permanent injunction as prayed for ?

13.The plaintiff failed to establish her possession over the schedule property, hence the interference by the defendant does not arise. Hence she is not entitled for perpetual injunction as prayed for.

Accordingly issue No.2 is answered.

14. Issue No.3:- To what relief ?

15.In the result, suit is dismissed without costs.

Dictated to the personal assistant transcribed by her, corrected and

pronounced by me in the open court on this 8th day of May, 2015.

I Addl. Junior Civil Judge Ranga Reddy District.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

On behalf of the Plaintiff:

PW.1: P.Vasantha

PW.2: B.Sadanand 7 On behalf of the Defendant:

DW.1: A.V.Bhaskar Rao

DW.2: B.Laxmana Rao

EXHIBITS MARKED

On behalf of the Plaintiff:

Ex.A1: CC of sale deed bearing doc.No.17395/2006, dt:24-8-2006.

Ex.A2: CC of agreement of sale cum-GPA bearing doc.No.13260/2006,

dt:26-06-2006.

Ex.A3: CC of sale deed bearing doc.No.4134/1981, dt:5-6-1981.

Ex.A4: Copy of police complaint.

Ex.A5: Certificate issued by Inspector of Police, dated 03-05-2006.

Ex.A6: Encumbrance certificate from 1995 to 2007.

Ex.A7: Encumbrance certificate from 1980 to 1982.

Ex.A8: Photographs (5 Nos.) along with C.D.

On behalf of the Defendant:

Ex.B1: Original registered sale deed doc.No.4134/1981, dt:5-6-1981.

Ex.B2: Original registered sale deed doc.No.1650/1996, dt:24-4-1996.

Ex.B3: Original registered sale deed doc.No.8930/2002, dt:7-11-2002.

Ex.B4: Encumbrance certificate from 01-05-1995 to 30-09-2007.

I Addl. Junior Civil Judge Ranga Reddy District.

1

IN THE COURT OF THE FIRST ADDITIONAL JUNIOR CIVIL JUDGE,

RANGA REDDY DISTRICT AT L.B.NAGAR

PRESENT : SMT. M.SHYAM SREE

FIRST ADDITIONAL JUNIOR CIVIL JUDGE,

RANGA REDDY DISTRICT.

WEDNESDAY, THE 29 th DAY OF APRIL, 2015

O.S.No.87 OF 2013

Between:

Kapil Chit Funds Pvt.Ltd. Dilsukhnagar Branch, Represented by its Zonal Manager (Legal) Sri D.Rajeshwar … Plaintiff

AND

1.Mr.Jayaprakash Agarwal, S/o.Raghuveer Dayal Goyal, aged about 44 years, Occ: M/s.Prince Textiles, R/o.Flat No.A3, Plot No.30, Bharathi Apartments, Huda Complex, Saroor Nagar, Hyderabad.

2.Mr.MD.Hafeezur Rahman, S/o.MD.Abdul Rasheed, aged about 53 years, Occ: M/s.Kolapurio Corner Footwear. R/o.H.No.21-1-9/5, Nayapool X Road, Hyderabad.

3.Mr.MD. Mateenuddin, S/o.MD.Muneeruddin, aged about 32 years, Occ: Business, Muneer & Sons. R/o.H.No.21-1-1008, Poolbagh, Chandrayangutta, Hyderabad.

4.Mr.Yosuf Bin Omer, S/o. Omer Bin Ali, aged about 38 years, Occ:S.A. Enterprises, R/o.5-4-682, Golden Nest Apartments 1st floor, Old Kattelmandi Nampally, Abids, Hyderabad.

5.Mr.K.Mahender, S/o.K.Jangaiah, aged about 42 years, Occ: Private Employee, R/o.18-99/1, 2nd Floor, Above DCB Bank, Opp: Chaitanyapuri Petrol Pump, Kamalnagar, Gaddiannaram, Dilsukhnagar, Hyderabad.

6.Mr.B.Sridhar Reddy, S/o.B.Krishna Reddy, Aged about 26 years, Occ: Private Employee, R/o.18-99/1, 2nd Floor, Above DCB Bank, Opp: Chaitanyapuri Petrol Pump, Kamalnagar, Gaddiannaram, Dilsukhnagar, Hyderabad. …Defendants

This suit is coming on this day for hearing before me in the presence of Sri J.Srinivasa Reddy, advocate for the plaintiff and Sri

D.Sridhar advocate for defendant No.1 and defendants No.2 to 6 2 remained ex parte and having stood over for consideration this court delivered the following:

J U D G M E N T

This is a suit filed by the plaintiff company against the defendants No.1 to 6 for recovery of Rs.12,856/- on the foot of chit agreement.

2.The brief averments of the plaint are that the defendant

No.1 joined as a member in chit No.DT09J-06 for chit amount of

Rs.5,00,000/- on 16.03.2009. In the auction held on 18.07.2010, the defendant No.1 became successful bidder and agreed to forgo

Rs.1,01,100/-. The defendant No.1 paid Rs.2,50,000/- till the date of payment of prize money. The defendants No.2 to 6 stood as guarantors and executed agreement of guarantee. The defendant No.1 paid 48 full 49 part installments and thereafter committed default from July, 2012.

The plaintiff company got issued legal notice but the defendants did not turn up. Hence the plaintiff filed this suit.

3.The brief averments of the written statement filed by the defendant No.1 are that he joined as a subscriber with the plaintiff's company and was allotted ticket No.DT09J-06, the total value of the chit being Rs.5,00,000/- and he participated in the auction held on 18-07- 2010 and became successful bidder and agreed to forego Rs.1,01,000/-.

He paid Rs.2,50,000/- till the date of payment of prize amount and he furnished the 2 to 6 defendants as guarantors and executed an agreement of guarantee for future liability of Rs.2,50,000/-. He paid 48th and 49th part installments. He denied that he made default in payment from July, 2012, in fact in the month of August one collection 3 employee approached him and collected Rs.61,000/- from him towards this chit and another chit in the same series i.e., DT09J-22 and he issued one receipt and promised that he will give NOC from the company saying that entire amount is received.

4.It is further submitted that in fact he had not received any legal notice as such and after becoming default the executive of the plaintiff company used to collect the installments. The calculation in future subscriptions and interest rate is wrong and highly arbitrary, the plaintiff wantonly in order to extract the amount illegally in the form of interest from him filed the present suit, the plaintiff not properly gone through the amounts under due after deducting the amount which he had paid after his default, and the plaintiff also should have reduce the rate of interest. When he approached the plaintiff company in order to pay the part of due installments, then they said that they will not take the installments because they had filed the suit. Hence this defendant denied all other allegations and finally prayed for dismissal of the suit.

5.The defendants No.2 to 6 remained ex parte.

6.Basing on the rival contentions this court framed the following issues:

1. Whether the plaintiff is entitled to recover the entire suit amount ? if so from whom ?

2. To what relief ?

7.At the event of trial on behalf of the plaintiff got examined

PW.1 and got marked Exs.A1 to A14. On behalf of defendant DW.1 got examined and got marked Ex.B1.

4

8.Heard the counsel for the plaintiff and defendants.

9. Issue No.1:- Whether the plaintiff is entitled to recover the entire suit amount ? if so from whom ?

10.This suit is filed by the plaintiff company for recovery of an amount of Rs.12,856/-. Admitted facts are that the 1st defendant had joined as a member and became successful bidder agreeing to forego of

Rs.1,01,000/- and furnished 2 to 6 defendants as guarantors for future liability of Rs.2,50,000/-. The only dispute is that the defendant denies that he committed default in payment of amount and that he paid

Rs.61,000/- towards full payment of this chit and part payment towards another chit. Therefore he had paid the entire amount due to the plaintiff company.

11.The plaintiff in order to establish their case got examined

PW.1 on its behalf and got marked Exs.A1 to A14 which are Ex.A1:Board

Resolution dated 30-04-2011, Ex.A2: Chit agreement dated 16-03-2009,

Ex.A3: Guarantee agreement dated 19-08-2010, Ex.A4: Demand

Promissory note, dt:19-08-2010, Ex.A5: Cash voucher dated 19-8-2010,

Ex.A6: Office copy of legal notice, dated 11-01-2013, Ex.A7: Postal

Unserved receipt of D1, Ex.A8: Postal Unserved receipt of D2, Ex.A9:

Postal Unserved receipt of D3, Ex.A10: Postal Unserved receipt of D4,

Ex.A11: Postal Unserved receipt of D5, Ex.A12: Postal Unserved receipt of D6, Ex.A13: True copy of statement of account and Ex.A14:

Authorization letter.

5

12.PW.1 in his cross-examination admitted that on 27-08-2012 the defendant had paid an amount of Rs.61,000/-, but denied that the said amount was paid to clear this chit and part payment for Chit No.

DT09J-22 and he adds that the said amount was reflected in Ex.A13 on 23-09-2012. The documents Exs.A1 to A14 are not disputed by the defendant so also Ex.B1 i.e., receipt for Rs.61,000/- paid by the defendant to the plaintiff company is also not disputed by the plaintiff company. But as seen from Ex.A13 on 23-09-2012 an amount of

Rs.48,900/- was shown as recovery, whereas the balance due amount that has to be paid by the 1st defendant by that date was Rs.60,504/- and admittedly the 1st defendant had paid Rs.61,000/- on 27-08-2012, but nearly after lapse of one month i.e., on 23-09-2012 the payment of

Rs.48,900/- was reflected in Ex.A13 statement showing Rs.11,604/- as due towards the suit amount. Then it is for the plaintiff to satisfy the court when it is Rs.61,000/- that has been paid by the 1st defendant, why it is only Rs.48,900/- that has been shown in the statement. If the amount has been adjusted towards any charges or penalty the same should also reflect in the statement itself, as the statement of account has to reflect all the details pertaining to a particular chit ticket number.

But the statement do not disclose any details regarding how the rest of the amount was adjusted. So the plaintiff company failed to establish that the 1st defendant is due of an amount of Rs.11,604/- which is reflected in the Account statement Ex.A13. As seen from Ex.B1 the amount which is due by that date as per Ex.A13 was repaid by the 1st defendant. Therefore the plaintiff company is not entitled to recover the suit amount. Accordingly issue No.1 is answered.

6

13. Issue No.2: To what relief ?

14.In the result, the suit is dismissed without costs.

Dictated to the personal assistant transcribed by her, corrected and

pronounced by me in the open court on this 29 th day of April, 2015.

I Addl. Junior Civil Judge Ranga Reddy District

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

Plaintiff:

PW.1: Sri B.Srinivas Rao

Defendants:

DW.1: Mr.Jaya Prakash Agarwal

EXHIBITS MARKED FOR

Plaintiff:

Ex.A1 : Board Resolution dated 30-04-2011.

Ex.A2: Chit agreement dated 16-03-2009.

Ex.A3: Guarantee agreement dated 19-08-2010.

Ex.A4: Demand Promissory note, dt:19-08-2010.

Ex.A5: Cash voucher dated 19-8-2010.

Ex.A6: Office copy of legal notice, dated 11-01-2013.

Ex.A7: Postal Unserved receipt of D1.

Ex.A8: Postal Unserved receipt of D2.

Ex.A9: Postal Unserved receipt of D3.

Ex.A10: Postal Unserved receipt of D4.

Ex.A11: Postal Unserved receipt of D5.

Ex.A12: Postal Unserved receipt of D6.

Ex.A13: True copy of statement of account.

Ex.A14: Authorization letter.

Defendants:

Ex.B1: Original receipt issued by plaintiff for Rs.61,000/-, dt:27-08-2012.

I Addl. Junior Civil Judge Ranga Reddy District 7 8

1

IN THE COURT OF THE FIRST ADDITIONAL JUNIOR CIVIL JUDGE,

RANGA REDDY DISTRICT AT L.B.NAGAR

PRESENT : SMT. M.SHYAM SREE

FIRST ADDITIONAL JUNIOR CIVIL JUDGE,

RANGA REDDY DISTRICT.

WEDNESDAY, THE 29 th DAY OF APRIL, 2015

O.S.No.94 OF 2013

Between:

Kapil Chit Funds Pvt.Ltd. L.B.Nagar Branch, Rep. by its Zonal Manager (Legal) Sri D.Rajeshwar

… Plaintiff

AND

1.Mr.Jayaprakash Agarwal, S/o.Raghuveer Dayal, aged about 44 years, Occ: M/s.Rince Textiles, R/o.Flat No.A3, Plot No.30, Bharathi Apartments, Huda Complex, Saroor Nagar, Hyderabad.

2.Mr. Khaja Moizuddin, S/o. Md.Muniruddin, aged about 35 years, Occ: M/s.Nizam Textiles, R/o.H.No.18-1-510/A/88, Phool Bagh Chandrayangutta, Hyderabad.

3.Mr.T.Vinay Kumar, S/o. T.Ram Bharose, aged about 43 years, Occ: M/s.Vinay Kumar Traders, R/o.H.No.22-8-66/66, Yousuf Bazar, Chatla Bazar, Hyderabad.

4.Mr.D.Prahlad, S/o.D.Shankar Rao, aged about 37 years, Occ: M/s.Prahlad Foot Wear, R/o.H.No.18-7-445/28/B, Saraswathi Nagar, Lalitha Bagh Road, Gowlipura, Hyderabad.

5.Mr.Azizullah Khan, S/o.Mujeebullah Khan, aged about 33 years, Occ: Aziz Collection's R/o.H.No.22-6-159/A & B, Shan Market, Opp: Shahran Hotel, Hyderabad.

6.Mr.K.Mahender, S/o.K.Jangaiah, Aged about 42 years, Occ: Private Employee, R/o.18-99/1, 2nd Floor, Above DCB Bank, Opp: Chaitanyapuri Petrol Pump, Kamalanagar, Gaddiannaram, Dilsukhnagar, Hyderabad.

7.Mr.B.Sridhar Reddy, S/o.B.Krishna Reddy, aged about 26 years, Occ: Private Employee, R/o.18-99/1, 2nd Floor, above DCB Bank, Opp:Chaitanyapuri Petrol Pump, Kamalanagar, Gaddiannaram, Dilsukhnagar, Hyderabad. …Defendants 2

This suit is coming on this day for hearing before me in the presence of Sri J.Srinivas Reddy, advocate for the plaintiff and of Sri

D.Sridhar, advocate for defendant No.1 and defendants No.2 to 7 remained ex parte and having stood over for consideration this court delivered the following:

J U D G M E N T

This is a suit filed by the plaintiff company against the defendants No.1 to 7 for recovery of Rs.68,017/- on the foot of chit agreement.

2.The brief averments of the plaint are that the defendant No.1 joined as a member in chit No.DT09J-22 for chit amount of Rs.5,00,000/- on 16.03.2009. In the auction held on 18.12.2009, the defendant No.1 became successful bidder and agreed to forgo Rs.1,46,100/-. The defendant No.1 paid Rs.1,80,000/- till the date of payment of prize money. The defendants No.2 to 7 stood as guarantors and executed agreement of guarantee. The defendant No.1 paid 43 full 44 part installments and thereafter committed default from February, 2012.

The plaintiff company got issued legal notice but the defendants did not turn up. Hence the plaintiff filed this suit.

3.The brief averments of the written statement filed by the defendant No.1 are that he joined as a subscriber with the plaintiff's company and was allotted ticket No.DT09J-22, the total value of the chit being Rs.5,00,000/- and he participated in the auction held on 18-12-2009 and became successful bidder and agreed to forego Rs.1,46,100/-. He paid Rs.1,80,000/- till the date of payment of prize amount and he furnished the 2 to 7 defendants as guarantors and executed an agreement of guarantee for future liability of Rs.3,20,000/-. He paid 43rd 3 and 44th part installments. He denied that he made default in payment from July, 2012, in fact in the month of August one collection employee approached him and collected Rs.61,000/- from him towards this chit and another chit in the same series i.e., DT09J-22 and he issued one receipt and promised that he will give NOC from the company saying that entire amount is received.

4.It is further submitted that in fact he had not received any legal notice as such and after becoming default the executive of the plaintiff company used to collect the installments. The calculation in future subscriptions and interest rate is wrong and highly arbitrary, the plaintiff wantonly in order to extract the amount illegally in the form of interest from him filed the present suit, the plaintiff not properly gone through the amounts under due after deducting the amount which he had paid after his default, and the plaintiff also should have reduce the rate of interest. When he approached the plaintiff company in order to pay the part of due installments, then they said that they will not take the installments because they had filed the suit. Hence this defendant denied all other allegations and finally prayed for dismissal of the suit.

5.The defendants No.2 to 7 remained ex parte.

6.Basing on the rival contentions this court framed the following issues:

1. Whether the plaintiff is entitled to recover the entire suit amount ? if so from whom ?

2. To what relief ?

4

7.At the event of trial on behalf of the plaintiff got examined

PW.1 and got marked Exs.A1 to A15. On behalf of defendant DW.1 got examined.

8.Heard the counsel for the plaintiff and defendants.

9. Issue No.1:- Whether the plaintiff is entitled to recover the entire suit amount from ? if so from whom ?

10.This suit is filed by the plaintiff company for recovery of an amount of Rs.68,017/-. Admitted facts are that the 1st defendant had joined the chit as a member and became successful bidder agreeing to forego an amount of Rs.1,46,100/- and furnished 2 to 7 defendants as guarantors for future liability of Rs.3,20,000/- and also admitted that the 1st defendant had paid 43rd full and 44th part installments. The only dispute is that the defendant denies that thereafter he committed default in payment of amount and he paid Rs.61,000/- towards this chit and another chit. Therefore he had paid the entire amount due to the plaintiff company.

11.PW.1 in his cross-examination admitted that on 27-08-2012 the defendant had paid an amount of Rs.61,000/-, but denied that the said amount was paid toward part payment of this chit and towards full payment of chit No.DT09J-06 and adds that the same was reflected in

Ex.A14. But as seen from Ex.A14 which is the account statement no amount that was paid by the defendant on 27-08-2012 was reflected.

Adding to this the said amount of Rs.61,000/- was paid to the chit

No.DT09J-06, for which another suit vide OS NO.87/2013 was filed by the plaintiff company. In the receipt it was clearly mentioned that the amount was received towards for chit No.DT09J-06, but not the present 5 chit No. DT09J-22. For this reason the amount was also not reflected in the account statement of the present suit. Except mentioning the payment that was made for the chit No.DT09J-06, the defendant had not made any averment that he had made any payment towards present chit.

According to him that amount was paid for the satisfaction of that chit and part payment of present chit. But the amount due in that chit by the date of payment of Rs.61,000/- was Rs.60,504/-. So it cannot be said that

Rs.61,000/- was paid for the full satisfaction of that chit and part payment towards the present chit. The defendant did not put up any defence other than that the amount was paid by him on 27-08-2012, but that was not made for the present chit ticket No. DT09J-22. Therefore it can be concluded that the 1st defendant had paid 43rd installments in full and 44th in part and therefore committed default. Therefore the 1st defendant is liable to pay suit amount, admittedly the 2 to 7 defendants are the guarantors for the chit transaction in between the plaintiff company and 1st defendant, so they are also jointly liable for the payment of suit amount. Accordingly issue No.1 is answered.

12. Issue No.2: To what relief ?

13.In the result, the suit is decreed with costs and the defendants No.1 to 7 jointly and severally liable to pay Rs.68,017/- (Rupees Sixty eight thousand and seventeen only) to the plaintiff company together with interest @ 6% per annum from the date of filing of the suit till two years from this date.

Dictated to the personal assistant transcribed by her, corrected and

pronounced by me in the open court on this 29 th day of April, 2015.

I Addl. Junior Civil Judge Ranga Reddy District 6

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

Plaintiff:

PW.1: Sri B.Srinivas Rao

Defendants:

DW.1: Mr.Jaya Prakash Agarwal

EXHIBITS MARKED FOR

Plaintiff:

Ex.A1 : Board Resolution dated 30-04-2011.

Ex.A2: Chit agreement dated 16-03-2009.

Ex.A3: Guarantee agreement dated 05-03-2010.

Ex.A4: Demand Promissory note, dt:05-03-2010.

Ex.A5: Cash voucher dated 05-03-2010.

Ex.A6: Office copy of legal notice, dated 12-12-2012.

Ex.A7: Postal Unserved receipt of D1.

Ex.A8: Postal Unserved receipt of D2.

Ex.A9: Postal Unserved receipt of D3.

Ex.A10: Postal Unserved receipt of D4.

Ex.A11: Served Ack. of D5.

Ex.A12: Postal Unserved receipt of D6.

Ex.A13: Postal Unserved receipt of D7.

Ex.A14: True copy of statement of account.

Ex.A15: Authorization letter.

Defendants:

Nil.

I Addl. Junior Civil Judge Ranga Reddy District 7