Sri.M.Srinivasa Chary

IN THE COURT OF THE XIII ADDITIONAL DISTRICT & SESSIONS JUDGE,

RANGA REDDY DISTRICT AT L.B.NAGAR

Present: M. SRINIVASA CHARY, XIII Additional District & Sessions Judge.

Monday, the 14th day of March, 2022

A.S.No. 148 of 2015

Between:

K.Suguna, W/o. K.Ramulu, Aged about 53 years, Occ: Head Misses, R/o. 2-2-186/11/A, Amberpet, Hyderabad. … Appellant/Plaintiff

AND

1.K.Ramulu, S/o. K.Narayana Rao, Aged about 56 years, Occ: Retd. Head Master, R/o. H.No. 12-1-122/2, Ajay Nagar Colony, Bandlaguda, Nagole, Hyderabad.

2.K.Pratap Reddy, S/o. Late K.Gopal Reddy, Aged about 54 years, Occ: Agriculture, R/o. Muttakondur Village, Yadagirigutta Mandal, Nalgonda District.

3.T.Pallavi, W/o. T.Sathi Reddy, D/o. K.Prathap Reddy, Aged about 31 years, Occ: Service, R/o. H.No. 12-13-698, III Floor, Nagarjunanagar Colony, Tarnaka, Secunderabad-17.

4.B.Venkaiah, S/o. B.Venkateshwarlu, Aged about 30 years, Occ: Business, R/o. Plot No.14, NIN Colony, Boduppal Village, Ghatkesar Mandal, Ranga Reddy District.

5.Yerakala Sanjeeva, S/o. Y.Samaiah, Aged about 26 years, Occ: Service, R/o. H.No1-55, Jiyapally Village, Jameela Post, Bibinagar Mandal, Nalgonda District. … Respondents

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Appeal against the Judgment & Decree dt.11.03.2011 passed by the

learned II Addl.Senior Civil Judge, at L.B.Nagar, Ranga Reddy District,

in

O.S.No.33 of 2006

Between:

K.Suguna, … Plaintiff

AND

1. L.Ramulu,

2. K.Pratap Reddy,

3. T.Pallavi,

4. B.Venkaiah,

5. Y.Sanjeeva, … Defendants

This appeal is coming before me for final hearing on 28.02.2022, in the presence of Sri L.Harish, counsel for the appellant; Sri B.Prakash, counsel for respondent Nos.2 and 3; Sri P.Satyanarayana, counsel for respondent No.5; respondent Nos.1 and 4 remained exparte and upon hearing both sides, perusing the material on record and the matter, having stood over for consideration till this day, this Court passed the following:-

JUDGMENT

1.The unsuccessful plaintiff preferred this appeal Order XLI Rule 1 of CPC against the dismissal of her suit by the learned II Additional Senior Civil Judge,

Ranga Reddy District, at L.B.Nagar vide judgment and decree dt.11.03.2011 in

OS.No.33/2006.

2.For brevity and better understanding, the parties would be hereafter referred to as per their ranking before the trial court.

3.The plaintiff filed the suit for cancellation of the registered sale deed bearing document No.5159/1997 dt.04.09.1997 executed in favour of defendant No.2 by defendant No.1; for partition of the suit schedule property into two shares and for allotment of one such share i.e., 226.5 sq.yards to her; for directing the defendant

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Nos.3 and 5 to deliver the possession thereof by demolishing the structure; and for costs.

4.Briefly stated the averments of the plaint are that defendant No.1 is the husband of plaintiff. They have jointly purchased a residential plot No.17 in Sy.No.97 admeasuring 453 sq.yards situated at Boduppal Village, Ghatkesar Mandal, Ranga

Reddy District under a registered sale deed bearing document No.4325/1981 dt.31.08.1981 for a valid sale consideration, which is the subject matter of the suit and it would be referred to as ‘suit schedule property’.

5.As a result of matrimonial disputes, defendant No.1 abandoned the plaintiff and their three children about 20 years back and living separately. After a long time, the plaintiff learnt that defendant No.1 living with another woman and children born to them. The defendant No.1 without the knowledge of the plaintiff taken away the original sale deed bearing document No.4325/1981. The plaintiff now and then used to visit the suit schedule property. Recently (prior to suit) when she visited the suit schedule property, she could notice a house was under construction in a portion of the plot admeasuring 156 sq.yards. Then she questioned the workers, who disclosed that defendant No.5 constructing it. Then she approached him and questioned his authority, who disclosed that he purchased an extent of 156 sq.yards from defendant

No.4 under a registered sale deed bearing document No.9798/2005 dt.17.10.2005.

Further, she came to know that defendant No.4 purchased 156 sq.yards out of suit schedule property from defendant No.3 under a registered sale deed bearing document No.6433/2005 dt.04.07.2005. She has further come to notice that defendant No.2 gifted it to defendant No.3 who is his daughter, under a gift settlement deed bearing document No.6288/2003 dt.26.05.2003.

6.On her further probe as to how defendant No.2 acquired right over suit schedule property, she came to know that defendant No.1 executed registered sale

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4 of 17 deed by forging her signature in favour of defendant No.2 bearing document

No.5159/1997 dt.04.09.1997. Infact, she has never executed such sale deed along with defendant No.1. Her signature is forged. Therefore, no title passed thereunder to defendant No.2. Defendant Nos.1 and 2 in collusion with each other fabricated it to deprive of her legitimate right in respect of her half share in the property. As such, the said sale deed is not binding on the plaintiff and therefore it is liable to be cancelled. In case it is not cancelled, she will be put to suffer great loss. So also the documents executed by defendant No.2 in favour of defendant No.3, defendant No.3 in favour of defendant No.4, who in turn in favour of defendant No.5 are not binding on the plaintiff. The defendant No.3 is in possession of portion of schedule property admeasuring 297 sq.yards whereas defendant No.5 is in possession of 156 sq.yards.

Hence, the suit.

7.Defendant Nos.1 to 5 filed their written statements separately.

8.The following are the averments of written statement of defendant No.1 :

i)He admitted his relationship with plaintiff, purchasing of the suit schedule property jointly; living separately since 1983 on account of matrimonial disputes with plaintiff. He denied to have been living with another woman and begetting children through her. He denied to have taken the original sale deed bearing document No.4325/1981. Further, he has denied the rest of the allegations.

According to him he has never forged the signatures of the plaintiff and executed sale deed in favour of defendant No.2 as the plaintiff alleged. He executed registered sale deed to the extent of his undivided share by putting his signature before SRO,

Uppal but he is not aware whether the plaintiff came and executed registered sale deed in favour of defendant No.2. That after negotiations with defendant No.2 and after receiving sale consideration in respect of his half share.

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9.Defendant Nos.2 to 5 filed written statement together which was amended and after such amendment the pleadings of their written statement are as under :

i)They admitted that plaintiff is wife of defendant No.1 and purchased the property jointly in 1981. Defendant No.1 in a lawful way along with plaintiff executed sale deed in favour of defendant No.2, as such it cannot be cancelled. Further, the transfers in favour of defendant Nos.3 to 5 are lawful. Thus, the document bearing

No.5159/1997 is lawful, valid and binding on the plaintiff and it is not a forged one.

If for any reason this court comes to conclusion that the plaintiff’s plea of partition merits consideration, the site of 156 sq.yards together with constructed house in the western part of the suit land purchased by defendant No.5 under a registered sale deed bearing No.9798/2005 dt.17.10.2005 may be included in the half share that may be allotted to defendant No.1 on the ground of equity and justice. There is no cause of action, thus prayed for dismissal of the suit with exemplary costs.

10.On the strength of the above pleadings, the learned trial judge framed the following issues :

1) Whether the plaintiff did not execute the registered sale deed

bearing document No.5159/1997 dt.04.09.1997 in favour of

defendant No.2?

2) Whether the register sale deed bearing document No.5159/1997 dt.04.09.1997 is liable to be cancelled?

3) Whether the plaintiff is entitled for the relief of partition as prayed for?

4) To what relief?

11.Additional issue was also framed on 03.03.2010 on the strength of the amended written statement which is as under :

“Whether defendant No.5 is entitled to the relief as prayed for in

the amended written statement”?

12.Before the trial court, the plaintiff herself examined as PW.1 and got marked

Exs.A1 to A5. On behalf of defendants, DWs.1 and 2 were examined and Exs.B1 to

B7 were marked.

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13.On appreciation of oral and documentary evidence and on hearing on either side, the learned trial judge dismissed the suit. Assailing which the plaintiff filed the present appeal on following grounds :

i)The trial court came to an erroneous conclusion that the appellant/plaintiff failed to prove her case, on mere conjectures and surmises. The trial court failed to appreciate the fact that the appellant/plaintiff discharged the initial burden casts on her to prove that her signature on Ex.A2 is forged. When defendant No.1 himself admitted that he executed Ex.A2 to the extent of his undivided share in the plot and he was not aware whether the appellant/plaintiff came and executed Ex.A2 or not. The trial court did not pass any order in IA.No.773/2006 under Order XVI Rule 6 of CPC seeking direction to the defendants to produce original of Ex.A2 inspite of filing counter by defendant Nos.2 to 5 and deprive the opportunity to compare the disputed signatures of plaintiff on Ex.A2 with that of her admitted signatures.

ii)The trial court ought to have appreciated the fact that defendant Nos.2 to 5 have not taken any specific reply in the counter they filed in

IA.No.773/2006 that the original of Ex.A2 was lost in transit nor did they plead

the same in their written statement and for the first time such a plea is taken by defendant No.2 which is beyond pleadings. The trial court ought to have drawn an adverse interference against defendant No.2 under Section 114 (g) of Indian Evidence Act for non production of original of Ex.A2. The trial court failed to appreciate the fact that defendant No.5 (DW.2) stated in his cross examination that the plaintiff came to know about alienation of the suit plot in the month of December, 2005 when she approached him and enquired about the construction under taken by him. Therefore, the present suit filed by the appellant was within limitation calculating from the date of knowledge.

14.Respondent Nos.1 and 4/defendant Nos.1 and 4 remained exparte in this appeal.

15.Written arguments filed on behalf of plaintiff and defendant Nos.2 and 3.

Defendant No.5 did not submit anything during the course of arguments.

16.Now the points that fell for consideration in this appeal are :

i) Whether the plaintiff executed original of Ex.A2 along with her husband-defendant No.1 in favour of defendant No.2 and that is it true, valid and binding on the plaintiff?

ii) Whether the original of Ex.A2 sale deed bearing document

No.5159/1997 dt.04.09.1997 is liable to be cancelled?

iii) Whether the plaintiff is entitled for partition sought for?

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iv) Whether the judgment of the trial court dt.11.03.2011 in

OS.No.33/2006 is factually tenable and legally sustainable or

liable to be set aside?

v) To what relief?

17.POINT Nos.1 to 4 :

The sum and substance of the written arguments filed on behalf of appellant/plaintiff is to the effect that the trial court erred in appreciating the evidence and held that plaintiff did not discharge the initial burden cast upon her in proving the fact that signature on Ex.A2 does not belong to her. In this regard, the learned counsel for plaintiff relied upon the judgment of Hon’ble Supreme Court in

Chennadi Jalapathi Reddy Vs. Baddam Pratap Reddy (dead) through legal

representatives and another reported in (2019) 14 SCC 220, held in para 10 that, “By now, it is well settled that the court must be cautious while evaluating expert evidence, which is a weak type of evidence and not substantive in nature. It is also settled that it may not be safe to solely rely upon such evidence, and the court may seek independent and reliable corroboration in the facts of a given case. Generally, mere expert evidence as to a fact is not regarded as conclusive proof of it.”

18.The endeavor of learned counsel for appellant is that trial court came to conclusion that thumb and signatures registers were not summoned from the office of Sub-Registrar where disputed sale deed is registered for sending it to the expert to disprove the signature of plaintiff on Ex.A2 which goes to show that trial court concluded that expert evidence is required to prove the element of forgery, ignoring the legal position that expert evidence is weak type of evidence and besides not substantive piece of evidence. It is further contended that plaintiff claimed that her signature on Ex.A2 is forged. Defendant No.1 through his written statement has taken a specific plea that he went to the registration office and signed on Ex.A2 and left the place and that he does not know who the other person signed it. Admittedly, defendant No.1 and plaintiff are living separately since 1983. The evidence of DW.1 that he lost the original of Exs.A1 and A2 and defendant No.2 as DW.1 claims that

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8 of 17 plaintiff and defendant No.1 jointly executed Ex.A1 sale deed. Thus, the plaintiff has discharged her burden which shifts on to the defendants to prove that plaintiff has signed on Ex.A2.

19.Be that as it may, it is also his further contention that defendant No.2/DW.1 is the custodian of Exs.A1 and A2. Having taken plea that he lost the original of

Exs.A1 and A2 in transit, the trial court though rightly observed that defendant

No.2/DW.1 even did not lodge a report with police for the loss of instruments ought to have drawn an adverse inference under Section 114 (g) of Indian Evidence Act against defendant No.2 as he knows the signature of plaintiff on Ex.A2 is a forged one and deliberately did not file the original. The trial court ought to have observed in its judgment that plaintiff failed to examine the witnesses who attested Ex.A2, ignoring the fact that the witnesses are not known to her as she claims her signature was forged. The trial court ought to have observed that defendant No.2/DW.1 failed to discharge the burden shifts on to them in proving the fact that plaintiff had also come to the Registrar Office and signed Ex.A2. Thus, he urged to set aside the impugned judgment and decree.

20.On the other hand, the sum and substance of the written arguments on behalf of defendant Nos.2 and 3/defendant Nos.2 and 3 is to the effect that the trial court failed to frame issue, whether the suit filed by the plaintiff was within the period of limitation or not. Nevertheless, it dealt with the plea of limitation since it is the duty of the court to verify whether the suit is within limitation or not. In para 18, the trial court dealt with the issue of limitation and came to conclusion that inspite of the fact of defense of limitation is not taken, the suit has to be dismissed on the ground of limitation. The trial court on issue Nos.1 and 2 elaborately discussed the pleadings and evidence brought on record and came to the conclusion that the plaintiff has not taken any steps in summoning the original thumb impression and signature register from the concerned Sub-Registrar office to send to the expert for

AS.No.148 of 2015

9 of 17 comparison with her disputed signature found on Ex.A2 with her admitted signatures and thumb impression and thus held that the plaintiff is not entitled to seek the relief of cancellation of registered sale deed bearing document No.5159/1997 dt.04.09.1997 and thus answered the issue Nos.1 and 2 in favour of the defendants and against the plaintiff. From 1997 to 2006, the plaintiff has not taken any steps to protect the suit schedule property and plaintiff neither pleaded nor led any evidence, hence the trial court rightly dismissed the suit.

21.In support of contentions raised in the written arguments, the learned counsel for respondent Nos.2 and 3/defendant Nos.2 and 3 cited an authority in

Dahiben Vs. Arvindbhai Kalyanji Bhanusali reported in (2020) 7 SCC 366, wherein the Hon’ble Apex Court in para 15.4 held as under, “Rejection of plaint, period of limitation, starting point, plea that period of limitation commenced on obtaining copy of index of sale deed and discovering alleged fraud committed by purchaser, receipt of index would not constitute cause of action for filing suit, cause of action arose on non- payment of bulk of sale consideration, which even occurred in year 2009 when last cheque was delivered to plaintiffs, plea no tenable.”

22.Having regard to the rival contentions raised in the written arguments, it is the right time to have look into the document exhibited on either side for brevity and better understanding. As many as five documents have been exhibited on behalf of plaintiff under Exs.A1 to A5 which are Ex.A1 true copy of registered sale deed bearing document No.4325/1981 dt.31.10.1981, whereunder the plaintiff and defendant No.1 jointly purchased suit schedule property. Ex.A2 is true copy of registered sale deed dt.04.09.1997 stated to have been executed by K.Suguna (plaintiff) and K.Ramulu (defendant No.1) in favour of defendant No.2-K.Pratap

Reddy, whereunder the suit schedule property is shown to have been transferred in favour of defendant No.2. Ex.A3 is true copy of gift settlement deed dt.26.05.2003 executed by K.Pratap Reddy (defendant No.2) in favour of T.Palavi (defendant No.3), whereunder he gifted the suit schedule property. Ex.A4 is true copy of sale deed

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10 of 17 dt.04.07.2005 executed by defendant No.3 in favour of defendant No.4 to an extent of 156 sq.yards out of 453 sq.yards in favour of defendant No.4 (B.Venkaiah). Ex.A5 is true copy of sale deed dt.17.10.2005 executed by defendant No.4 in favour of

Y.Sanjeeva (defendant No.5) to an extent of 156 sq.yards which he is shown to have purchased under Ex.A4.

23.On the other hand, Exs.B1 to B7 marked on behalf of defendants are as follows :

Ex.B1 is the letter of divorce executed by plaintiff. Ex.B2 is corresponding to

Ex.A5 – true copy of sale deed executed by B.Venkaiah (defendant No.4) in favour of

Y.Sanjeeva (defendant No.5) in respect of 156 sq.yards out of 453 sq.yards. Ex.B3 is miscellaneous receipt dt.30.03.2010 issued by the Bill Collector, Grampanchayat,

Boduppal showing that defendant No.5 paid Rs.1,440/- towards water tax for the period from April, 2008 to March, 2020. Ex.B4 is letter from defendant No.5 dt.30.03.2010 to ICICI bank, Hyderabad confirmed the possession of nine documents mentioned therein, of them original of Ex.B2 sale deed dt.17.10.2005 whereunder he purchased 156 sq.yards is also lying with the said bank which the bank confirmed. Exs.B5 and B6 are house tax receipts dt.01.09.2006, 25.06.2007 in the name of defendant No.4 showing the payment of property tax for the period 2006-07, 2007-08 in respect of house bearing No. 3-119/5/2. Ex.B7 is the electricity bill along with payment receipt in the name of defendant No.5 in respect of house

No. 3-119/5/2.

24.The plaintiff as PW.1 in her affidavit in lieu of examination in chief as required under Order XVIII Rule 4 of CPC reiterated the substance of the plaint. In a nutshell her claim is that she along with her husband defendant No.1 purchased the suit schedule property under Ex.A1. Since 20 years (prior to her deposition) herself, her children are living away from defendant No.1 on account matrimonial disputes.

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Defendant No.1 without her knowledge had taken away the original sale deed of

Ex.A1 whereunder they purchased jointly the suit schedule property. Subsequently, she came to know that he transferred the entire suit schedule property in favour of defendant No.2, in turn defendant No.2 gave the entire property in favour of defendant No.3 his daughter and that defendant No.3 sold 156 sq.yards out of 453 sq.yards (suit schedule property) in favour of defendant No.4 who in turn sold to defendant No.5. To substantiate the same she filed Exs.A1 to A5.

25.It is her specific contention that she has not executed the original of Ex.A1 along with her husband-defendant No.1 and thereby she has branded it as a created document by forging her signatures thereon and she disowned the signature bearing on certified copy of sale deed under Ex.A1. Original of it is not filed before this Court by the plaintiff under the guise that it was taken away by her husband-defendant

No.1. Thus, the initial burden lies on her to prove the fact that original of Ex.A1 did not bear her signature and signature stated to be belonging to here thereon infact not put by her, inasmuch as Section 101 of Indian Evidence Act envisages burden of proof on the person who asserts.

26.Though her husband- defendant No.1 filed written statement, did not come forward to examine himself as witness in support of his pleadings. As such, any amount of pleadings in the mode of written statement on behalf of defendant No.1 do not have any significance. Whereas, defendant No.2 and defendant No.5 have been examined as DWs.1 and 2.

27.The testimony of defendant No.2 as DW.1 is to the effect that defendant No.1 and plaintiff executed the original of Ex.A1 in his favour. He has specifically stated that the plaintiff and defendant No.1 came to the Registrar office and in the presence of witnesses they signed sale deed and handover original of it to him and that they came to the suit schedule property and delivered the physical possession thereof.

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According to him, the allegation of plaintiff that her signature is forged on original of

Ex.A1 by impersonation is false and incorrect. His deposition further reveals the fact that he lost the original sale deed during transit while going to Mothkur from

Hyderabad. As he lost the original sale deed, nobody had come forward to purchase the property even if he was ready and willing to sell, resultantly he had to execute a gift deed in favour of his daughter- defendant No.3 under the original of Ex.A3.

Subsequently for her personal necessities, her daughter- defendant No.3 sold part of the suit property to the extent of 156 sq.yards in favour of defendant No.4 under the original of Ex.A4 and delivered possession thereof to defendant No.4 and retained the possession of the rest of the property. According to him, plaintiff and defendant

No.1 hatched the plan to deprive of their legitimate rights in collusion with each other and filed this suit.

28.The deposition of defendant No.5 as DW.2 is to the effect that he is a bonafide purchaser of 156 sq.yards under Ex.A5/Ex.B2. He started construction and completed it to the knowledge of the plaintiff whose working place i.e., Government

School is just one kilometer away from the house site. She has never raised protest when construction was going on and long after completion of construction and after ‘Gruha Pravesham’ ceremony was completed, belatedly the plaintiff filed the above suit with false and untenable allegations. He claimed to have spent Rs.7,00,000/- to complete the construction by borrowing a house loan of Rs.9,00,000/- from ICICI bank, Habsiguda branch and that he has been paying monthly installment of

Rs.9,752/- to the said bank since January, 2006 and the loan will get discharged by 2031.

29.In cross examination of PW.1 it has been brought out that she has orally demanded defendant No.1 for return of the document. It was after three or four years of her separation, she came to know about missing of this document.

According to the plaintiff, herself and defendant No.1 since last 20 years (prior to the

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13 of 17 suit) living away separately. Once the plaintiff could notice factum of missing the document three or four years after defendant No.1 separately living with her, nothing prevented her in taking any legal action if really it was taken away by defendant No.1 for getting it back, but she did not send any legal notice to defendant

No.1 demanding him to return the document. It appears to be a serious infirmity on the part of the plaintiff in not getting the original sale deed from her husband whereunder they purchased the property jointly. Moreover, defendant No.1 has taken a specific plea in the written statement that he could execute and registered a sale deed under the original of Ex.A2 in favour of defendant No.2 to the extent of his share and when Ex.A2 is carefully examined, no such recital found, such statement is palpably false moreover he remained silent without entering into witness box either to tender evidence on his behalf or to examine any witness to prove the fact that he had to execute original of Ex.A2 only in respect of his half share purchased under original of Ex.A1. Be that as it may, it is the specific plea of the plaintiff that she did not subscribe her signature on original of Ex.A2 and that it is a rank forgery, thereby meaning that she is not at all a party to such document under the original of Ex.A2.

Therefore, heavy burden lies on her to prove the plea of forgery. It appears that the original of disputed document under Ex.A2 is not before the court. Then the options left for the plaintiff is to get it summoned from the concerned who is found to be in possession and alternatively she can summon the original finger print register from the concerned Registrar. It seems that defendant No.2 is indeed the custodian of original of Exs.A1 and A2 but he had taken the plea that he lost the original of

Exs.A1 and A2 in transit. It is indeed really such incident happened wherein defendant No.2 had lost Exs.A1 and A2, nothing prevented him to lodge a report to the concerned police to get it traced out. But there is no evidence of whatsoever in that respect. As such, the court can take the adverse inference available under

Section 114 (g) of Indian Evidence Act but here the matter cannot be concluded solely on the ground that defendant No.2 failed to produce the original of Exs.A1 and

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A2, particularly when the plaintiff has every opportunity to get the original finger print register and specimen signature register which is available with the Registrar concerned. But the plaintiff wanted to rely upon the weakness on the part of defendant No.2 in not producing Ex.A2 disputed document on the ground that it has been lost beyond recovery, yet she did not avail the opportunity to bring on record the original thumb impression and specimen signature register from the Registrar concerned in order to send it with the disputed signatures with her admitted signatures so that the truth or otherwise in respect of Ex.A2 could be thrashed out.

Moreover, she has confined to the extent of her evidence alone in respect of proof of forgery of her signature on the original of Ex.A2. In the given circumstances, it is not legitimate to draw an adverse inference against defendant No.2 for not bringing on the original document of Ex.A2. If really there is no other record such as finger print and thumb impression register is not available, the court could certainly invoke adverse inference under Section 114 (g) of Indian Evidence Act. The plaintiff did not make any attempt by getting issued a notice to defendant No.2 for production of original of Ex.A2. It is worthy to mention here that the record like the thumb impression register being maintained by the Sub-Registrar is concerned, is a genuine document that contains the thumb impressions of the vendor and vendee of immovable property and law in respect of thumb impression is well established as there may be possibility in so far as signatures are concerned on account of disguising them at a different stages for different purposes to the convenience of the parties. Nothing prevented the plaintiff in summoning such crucial record, had she taken any steps in that regard, the truth or otherwise in respect of original of Ex.A2 could have been come out. The silence on the part of the plaintiff in withholding the best evidence being available is a sure index and that leads the court to draw an adverse inference against the plaintiff rather than defendant No.2 for not summoning such record, inasmuch as defendant No.2 stated that it was lost. So far as the decision cited on behalf of the plaintiff as referred to in the written arguments is

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15 of 17 concerned, it is well settled that the evidence of expert is a weak piece of evidence, nevertheless in all cases it cannot be applied, more particularly when thumb impression register which speaks the genuineness of the thumb of the person who denies it is available and is not sought for production of the same before the Court and such relief is not availed by the plaintiff. As such, the said decision in the given circumstances may not be helpful to the plaintiff when she failed to discharge the burden lies on her.

30.Indeed, the plaintiff contended that the defendant No.1 has taken away the original of Ex.A1. Nothing prevented her in getting issued notice to her husband- defendant No.1 to produce the original of it. It is worthy to note here that according to her, missing of original of Ex.A1 she could notice three or four years after defendant No.1 living away separately from them. If really, defendant No.1 had taken away the original of Ex.A1 sale deed, the plaintiff has so many remedies to get it on record but she is silent simply confining to the extent of pleadings. It is pertinent to note here that defendant No.1 is none other than the husband of plaintiff. If really defendant No.1 is no way related to plaintiff, the contention of plaintiff in that respect could be viewed differently. Since the plaintiff and defendant

No.1 are wife and husband, any amount of doubt that arises in the mind of the court that possibility of collusion between them may not be ruled out even though they are living away from each other. If original of Ex.A1 is brought out on record, the trial court and this court could have taken it as the admitted document since the purchase of property by plaintiff and defendant No.1 is not disputed by the defendants under the original of Ex.A1.

31.If forgery plea is taken, the factual situation would be forgery of documents for the purpose of making use of them for the benefit of the maker. In such circumstances, the fact of forgery would be against the interest of a person whose

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16 of 17 signature is forged and without the knowledge of said person and then the consent of such person required is absent and then it becomes void abinitio in the eye of law since it is not binding on such person. For proving that the transfer deed such as original of Ex.A2 is as a result of forgery, evidence is to be let in, in this case beyond documents available to prove such document is forged one.

32.It is for the plaintiff to prove her forgery plea by producing acceptable evidence. If she is so sure about forgery, she should have taken steps by filing an application for obtaining an opinion from the expert by comparing her admitted thumb impression with that of the thumb impression available in thumb impression register being maintained by the Sub-Registrar concerned in respect of the registered sale deed i.e., original of Ex.A2.

33.Regarding the execution of the gift deed, sale deeds are concerned by defendant No.2 in favour of defendant No.3, defendant No.3 in favour of defendant

No.4 and defendant No.4 in favour of defendant No.5 are concerned, they are not in dispute. However, as the plaintiff is not able to succeed in disproving the transaction covered by the original of Ex.A2, neither it can be cancelled nor other documents which had come to be executed pursuant to the original of Ex.A2 is concerned. As such, they too are not liable for cancellation nor for declaring them to be null and void to hold that they are not binding on the plaintiff.

34.For all the foregoing reasons, I am of inescapable opinion and irresistible conclusion that the plaintiff is not entitled for any relief sought for under this suit and on perusal of the impugned judgment, I do not find any infirmity or irregularities warranting interference by this appellate court. As such and inasmuch as the finding of the trial court on all the issues are found to be with sound reasoning, judgment of the trial court needs to be confirmed and the appeal is liable for dismissal as it lacks merits. Accordingly, I hold under these points.

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35.POINT No.5 :

In the result, the appeal is dismissed as devoid of merits. Consequently the impugned judgment dt.11.03.2011 in OS.No.33/2006 passed by II Additional Senior

Civil Judge, Ranga Reddy District at L.B.Nagar is confirmed. In the circumstances of

the case, there is no order as to costs.

Dictated to the Stenographer, transcribed by him, corrected and pronounced by me in the Open

Court on this the 14 th day of March, 2022.

XIII ADDITIONAL DISTRICT JUDGE

RANGA REDDY DISTRICT

APPENDIX OF EVIDENCE

WITENSSES EXAMINED

NIL

EXHIBITS MARKED

NIL

XIII ADDITIONAL DISTRICT JUDGE

RANGA REDDY DISTRICT

IN THE COURT OF THE II ADDITIONAL DISTRICT JUDGE,

RANGA REDDY DISTRICT AT L. B. NAGAR.

Present :M.SRINIVASA CHARY, II Addl. District Judge

Thursday, the 19th day of January, 2023

C.M.A. NO. 41 OF 2016

Between :-

1. Vadla Vittal @ Banala Vittala Chary, S/o. Balaiah, Aged about 65yrs, Occ: Trust Chairman and Devottee, R/o.Bandlaguda Jagir Village, Rajendranagar Mandal, Ranga Reddy District.

2. B. Prem Chary S/o. Vadla Vittal @ Banala Vittala Chary, Aged about 45yrs, Occ: Trust members and business, R/o. Bandlaguda Jagir Village, Rajendranagar Mandal, Ranga Reddy District.

3. B. Raghuraj Goud, S/o. Anthaiah Goud, Aged about 53yrs, Occ: Business, R/o. BandlagudaJagirVillage, Rajendranagar Mandal, Ranga Reddy District.

4. B. Krishna Murthy Goud, S/o. Gandaiah, Aged about 52yrs, Occ: Business, R/o. Bandlaguda Jagir Village, Rajendranagar Mandal, Ranga Reddy District.

5. B. Venkata Chary S/o. Vadla Vittal @ Babala Vittala chary, Aged about 42yrs, Occ: Business, R/o. Bandlaguda Jagir Village, Rajendranagar Mandal, Ranga Reddy District.

6. B. Ramesh S/o. B. Narayana, Aged about 49yrs, Occ: Business, R/o. BandlagudaJagirVillage, Rajendranagar Mandal, Ranga Reddy District.

…...Appellants/respondents

AND

1. Sai Baba Temple Works Under Sai Seva Samithi, Rep. By Ex-President D. Venkataiah Goud, S/o. Venkata Ramaiah, Aged about 63yrs, Occ: Retd. Service, R/o.BandlagudaJagirVillage, Rajendranagar Mandal, Ranga Reddy District.

2. B. Harender Mudiraj (Ex.-Gen. Secretary) S/o. Venkataswamy, Aged about 48yrs, Occ: Service, R/o.

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Bandlaguda Jagir Village, Rajendranagar Mandal, Ranga Reddy District.

3. Keshav Naidu (Ex-Treasurer), S/o. Veerabadra Rao, Aged about 51yrs, Occ: Service, R/o. Bandlaguda Jagir Village, Rajendranagar Mandal, Ranga Reddy District.

4. P. Nagender Mudiraj S/o. P. Satyanarayana, Aged about 43yrs, Occ: Service, R/o. Bandlaguda Jagir Village, Rajendranagar Mandal, Ranga Reddy District.

5. N. Yadaiah S/o. Balaiah, Aged about 55yrs, Occ: Business, R/o. Bandlaguda Jagir Village, Rajendranagar Mandal, Ranga Reddy District.

6. D. Sanjay Chary, S/o. Veeraiah, Aged about 68yrs, Occ: Service, R/o. Bandlaguda Jagir Village, Rajendranagar Mandal, Ranga Reddy District.

(Respondents no. 4 to 6 are not necessary parties)

…...Respondents/Plaintiffs

On appeal against Decree and Orders dated 08.02.2016 in IA.No.389 of 2014 in O.S.No. 106 of 2014 on the file of Additional Junior Civil Judge – cum – XVII Metropolitan Magistrate, Cyberabad at Ranga Reddy District at Rajendranagar.

IA No. 389 of 2014

IN

OS No. 106 of 2014

Between:

1. Sai Baba Temple Works Under Sai Seva Samithi, Rep. By Ex-President D. Venkataiah Goud, S/o. Venkata Ramaiah, Aged about 63yrs, Occ: Retd. Service, R/o. Bandlaguda Jagir Village, Rajendranagar Mandal, Ranga Reddy District.

2. B. Harender Mudiraj (Ex.-Gen. Secretary) S/o. Venkataswamy, Aged about 48yrs, Occ: Service, R/o. Bandlaguda Jagir Village, Rajendranagar Mandal, Ranga Reddy District.

3. Keshav Naidu (Ex-Treasurer), S/o. Veerabadra Rao, Aged about 51yrs, Occ: Service, R/o. Bandlaguda Jagir Village, Rajendranagar Mandal, Ranga Reddy District.

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3. Keshav Naidu (Ex-Treasurer), S/o. Veerabadra Rao, Aged about 51yrs, Occ: Service, R/o. Bandlaguda Jagir Village, Rajendranagar Mandal, Ranga Reddy District.

--Petitioners/Plaintiffs AND

1. Vadla Vittal @ Banala Vittala Chary, S/o. Balaiah, Aged about 65yrs, Occ: Trust Chairman and Devottee, R/o. BandlagudaJagirVillage, Rajendranagar Mandal, Ranga Reddy District.

2. B. Prem Chary S/o. Vadla Vittal @ Banala Vittala Chary, Aged about 45yrs, Occ: Trust members and business, R/o. Bandlaguda Jagir Village, Rajendranagar Mandal, Ranga Reddy District.

3. B. Raghuraj Goud, S/o. Anthaiah Goud, Aged about 53yrs, Occ: Business, R/o. BandlagudaJagirVillage, Rajendranagar Mandal, Ranga Reddy District.

4. B. Krishna Murthy Goud, S/o. Gandaiah, Aged about 52yrs, Occ: Business, R/o. Bandlaguda Jagir Village, Rajendranagar Mandal, Ranga Reddy District.

5. B. Venkata Chary S/o. Vadla Vittal @ Babala Vittala chary, Aged about 42yrs, Occ: Business, R/o. Bandlaguda Jagir Village, Rajendranagar Mandal, Ranga Reddy District.

6. N. Yadaiah S/o. Balaiah, Aged about 55yrs, Occ: Business, R/o. Bandlaguda Jagir Village, Rajendranagar Mandal, Ranga Reddy District.

7. B. Ramesh S/o. B. Narayana, Aged about 49yrs, Occ: Business, R/o. BandlagudaJagirVillage, Rajendranagar Mandal, Ranga Reddy District.

...Defendants/Respondents

This Civil Miscellaneous Appeal is coming before me for final hearing in the presence of M/s. K. Yadagiri, Advocate for the Appellants and M/s. I. Nagender Rao, Advocate for Respondents no.1 to 3 and the

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matter having been heard and stood over for consideration till this day, the court delivered the following:

J U D G M E N T

1.This civil miscellaneous appeal is preferred by the unsuccessful defendants under Order XLI R I CPC against the Order dated 08.02.2016 in

I.A.No.389 of 2014 in O.S.No. 106 of 2014 passed by the learned Additional

Junior Civil Judge, Ranga Reddy District, at Rajendranagar whereby he allowed the application of the plaintiffs filed under Order XXXIX Rules 1 and 2 CPC and granted temporary injunction restraining the defendants from interfering with the peaceful day to day maintenance of the temple over the petition schedule property.

2.For the sake of convenience, the parties in this CMA would be hereinafter referred to as per their status in the suit.

3.The plaintiff filed I.A.No.389 of 2014 under Order XXXIX Rules 1 and 2 for grant of temporary injunction restraining the defendants and their men from causing any sort of interference with the peaceful day to day maintenance of the temple over the petition schedule property until disposal of the main suit.

4.In brief the averments of the affidavit filed in support of the application are as follows:

1.Petitioner is president of Sri Sai Baba Temple working under Sri Sai Seva Samithi and he is undertaking temple activities required for maintenance, development, collecting donations from devotees and maintaining accounts of the temple in records; initially respondent no.1 was absolute owner and peaceful possessor of Plot no. 27/Part, admeasuring 188sq.yds in Sy.no. 74/Part, situated at Vikas Nagar Colony, Bandlaguda

Jagir Village, Rajendranagar Mandal, R. R. District; in the year 2005, the respondent no.1 gifted said petition schedule property in favour of

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petitioner for religious purpose under registered gift settlement deed bearing Dco.no. 1562 of 2005 dt. 24.02.2005 and delivered the possession.

Subsequently, on 01.06.2005 a foundation was laid for construction of Sri

Shiridi Sai Baba temple. The petitioner obtained donations from general public and constructed Sri Sai Baba Temple on 30.04.2006 and Sri Sai Baba idol was installed in the temple. The petitioner opened a bank account to maintain accounts of temple wherein several devotees donated gold and silver articles to the temple. Since the temple became popular, the respondents no. 1 and 2 developed evil eye over the petition schedule property and created allegations against the petitioners and lodged a complaint vide FIR no. 183/2013 stating that the petitioner has forged the signature of respondent no.2 and has registered Sri Seva Samithi under registration no. 183/2011 dt. 12.12.2011 and the same was closed by police as “Mistake of fact”. Thereafter, the said society wound up by registrar of societies vide proceedings no. 2305/Societies/2013 dt.

17.01.2014. Since the respondents did not succeed in their attempts, they colluded with each other and created registered trust deed over the said plot bearing doc.no. 5/IV/2014 dt. 20.01.2014 without canceling the earlier gift settlement deed bearing doc.no. 1562/2005 dt. 24.02.2005. Further, having created invalid trust deed, the respondents are making illegal obstruction in day to day maintenance of the said temple and further, threatening the petitioners to handover movable properties and bank accounts of temple to the respondents. Hence prayed to grant temporary injunction restraining the respondents from causing interference with the peaceful day to day maintenance of the temple over the petition schedule property, until disposal of main suit.

5.Respondents/defendants filed counter with the following averments:

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1. The respondents/defendants admitted their previous possession over the petition schedule property and also admitted the gift deed executed in favour of the petitioner for religious purpose.

2. The respondent no.1 who is founder of the temple, and his family members arranged funds, collected donations and got constructed the temple over the petition schedule property and installed idol of Sri Shiridi

Sai Baba and also developed temple and maintained the temple with great respect and responsibility and respondent no.2 was advisor and committee member of the temple.

3. Without consultation with the respondent no.2, the petitioner no.1 got registered the society under the name and style of Sri Shiridi Sai Baba

Temple under registration No. 1183/2011 dt. 12.12.2011 by forging the signature of respondent no.2 and on complaint a case in Cr.no. 183 of 2013 was registered by Police Rajendranagar and subsequently, the said society was wound up by Registrar of Societies vide Proceedings NO.

2305/Societies/2013 dt. 17.01.2014.

4. After winding up of the said society, the respondent no.1 being founder of temple, held meeting on 19.01.2014 wherein respondents no. 2 to 7 participated and have decided to form into a trust; accordingly, the trust deed bearing doc.no. 5/IV/2015 dt. 20.01.2014 was registered in the name and style of Sri Sai Seva Samithi Trust. The formation of above said trust was also published in news paper and accordingly, the respondents collected donations to an amount of Rs. 2,89,722/- and spent for

Annadanam on every Thursday to an amount of Rs. 2,39,150/-. The accounts of the trust are in A/c.no. 50201284753, Allahabad Bank,

Hydershakote Branch, Rajendranagar Mandal and maintaining deposits, donations, Hundi Collections. Further the respondents are using the same for the purpose of management and expenditure of temple. Thus, as on 23.10.2013, the outstanding amount of said account is Rs. 50,576/-. Apart from this, the respondents conducted 8th anniversary day of temple on

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30.04.2014 and conducted various bhajana programmes on Thursdays and auspicious day like Guru Purnima Pujas and also taking care of temple priests. But the petitioners are illegally claiming themselves to be the take carers of the temple. Further, the petitioners are illegally holding gold ornaments, jewellery, silver, cash, original bank account passbooks, donation books, cellar keys and temple keys etc., which have to be handed over to the respondents trust and prayed to direct the petitioners to hand over the same to sri Sai Seva Samithi Trust. Further, the respondents also issued public notice on 09.03.2014 seeking to handover the said items and in compliance of which the alleged treasurer G. Keshav Rao handed over

Cellar Keys, Temple Keys, Almirah keys, plates and cooking articles etc., under the list of items mentioned in the list dt. 19.03.2014. Thus urged to dismiss the petition.

6.The learned trial Judge on hearing the counsel for plaintiffs and defendant and on appreciation of the material on record including the documents, was pleased to allow the application under the impugned

Order, which is now challenged by the respondents on the following :

1.The order and decretal order of the trial Court is erroneous and contrary to law.

2.Though the documents under Ex.R1 to R30 clearly speaks that the appellants have been peacefully maintaining and performing day to day rituals of the temple, inspite of which the lower court granted injunction arbitrarily which is against the law.

3.The learned trial judge not gone through the order which is against their own findings and also not gone through Ex.R30 bank statement which shows the appellants are maintaining the temple on the date of filing of the suit particularly from 21.01.2014 to till date but the respondent no.1 filed documents prior to 2013 only but the lower court has not gone through the Ex.R1 to R30.

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4.By virtue of the order of the Lower Court the appellants are precluded from performing the poojas and maintaining the temple which is grave mistate committed by theLower Court which is against the law and against the evidence on record and documents marked under Ex.R1 to R30.

5.The learned trial judge gave importance to Ex.P1 gift deed executed by appellant no.1 when the alleged representatives of the respondent no.1 were president, thereafter, he was no more a president but the lower court treating the said president as donee it is submitted through Ex.P1 temple is donee not the office bearers. The President, Secretary and Treasurer were office bearers only for the limited period and on their resignations, a trust was formed by the lower court not gone through all these aspects and the appellants and respondents have no right to claim immovable property and immovable property belongs to temple only.

6.The learned trial judge failed to observe that the President should act and elect for a limited period only as per Ex.P1 registered gift deed, but the lower court came to a wrong conclusion that they are collecting donations and maintaining the accounts and the alleged president and representatives of the respondents no.1 have not filed any single document to know the date of filing of the suit they have been maintaining their accounts and collecting the donations from the devotees. Despite the lower court granted injunction which is arbitrary and injustice and is liable to be set asied.

7.The appellants have prima-facie case and balance of convenience lies in their favour and on the guise of allowing the injunction petition, the appellants are trying to interfere in day to day rituals in the temple and if the injunction is not vacated the respondents will succeed in their illegal attempts ot dispossess the appellants from day to day rituals in the temple.

7.The following are the points that arise for determination:

1) Whether the impugned order is factually tenable

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and legally sustainable?

2) Whether the petitioners/Appellants are entitled for temporary injunction sought for?

3) To what relief?

POINT No.1 :

8.Injunction is an equitable relief which is generally granted taking note of the equitites of the case. The petitioner who sought for temporary injunction to restrain the respondents from interfering with the petition schedule property needs to make out prima-facie case, balance of convenience and irreparable loss in case of refusing the injunction sought for. It may be noted here that while examining the contentions of the parties in an interlocutory stage like the present one, detailed enquiry cannot be made with reference to the vexed question of facts. Moreover, whether the documents are clean or unclean cannot be meticulously gone into, if that task is undertaken by court it amounts to trying the matter.

There is no need to make roving enquiry which is not permissible. In other words, it may be understood that prima-facie case does not mean that court needs to look into the merits of the case in depth since what is needed at the very outset the material documents filed by the petitioner are sufficient to make out prima-facie case to grant the injunction prayed for.

9.Before going to address the rival contention it is better to have a glance in respect of admitted facts. Originally R1 was the owner of suit schedule property which he has gifted in favour of temple of plaintiff no.1.

subsequently, the temple was developed with donations and Sri Sai Baba

Idol was installed. Initially petitioners collected donations from devotees in the form of cash or kind. In the monthof December, 2011 Society was registered in the name and style of Sri Shiridi Sai Baba Temple, and petitioner – B. Venkataiah Goud is the president and it was wound up on

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17.01.2014 as per the proceedings of Registrar of Societies vide proceeding no. 2305/Societies/2013. Subsequently, on 20.01.2014 a trust was registered vide Doc.no. 5/IV/2014 in the name and style of Sri Sai Seva

Samithi to which R1 is a trust chairman.

10.Coming to the disputed facts are concerned, according to the petitioners, they have been maintaining the temple right from the beginning till date and thereby looking after all activities of the temple including maintenance, collection of donations from devotees and spending the same for the activities of temple including development. Per contra, the argument of R1 is that since beginning the respondents are taking care of the temple developments.

11.To substantiate the petitioners contention, as many as seven documents have been exhibited of them, Ex.P1 is registered gift deed where under, R1 gifted the plaint schedule property to the temple. Ex.P2 is original invitation in the name of Shri Shiridi Sai Baba Temple

Shankusthapana on 01.06.2005; Ex.P3 is original invitation card in respect of Vigraha Pratishtha on 30.04.2006; Ex.P4 is CC of trust deed dt.

20.01.2014; Ex.P5 is original passbook of Central Bank of India; Ex.P6 is original passbook of Alahabad Bank; Ex.P7 is consisting of nine photographs with two CDs.

12.On the other hand, Ex.R1 to R30 marked on behalf of respondents are Ex.R1 is registered gift deed bearing doc.no. 1562 of 2005

dt. 24.02.2005; Ex.R2 Registration of Sri Sai Seva Samithi vide Registration

No. 1183 of 2011, dt. 12.12.2011 of Government of AP registration and stamps department office of the registrar of societies, Prashanth Nagar, R.

R. District File no. CC/Soc 2279/2012, dt. 17.11.2012; Ex.R3 police complaint to commissioner of police dt. 28.12.2012; Ex.R4 complaint to

Registrar of Societies, dt. 31.12.2012; Ex.R5 is Police complaint to Director

General of Police; Ex.R6 is Complaint to Registrar of Societies dt.

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21.10.2013; Ex.R7 is Memo no. 5720/Societies/2013, dt. 17.01.2014 issued by Registrar of Societies, Ranga Reddy to D. Venkataiah Goud/president of

Sri Sai Seva Samithi and others; Ex.R8 is proceedings No.

2305/Societies/2013 dt. 17.01.2014 issued by Registrar of Societies, Ranga

Reddy to D. Venkataiah Goud/president of Sri Sai Seva Samithia and others;

Ex.R9 Trust Deed bearing doc.no. 5/IV/2014, dt. 20.01.2014; Ex.R10 is New body elected paper statement dt. 31.01.2014; Ex.R11 Original Registration book of miscellaneous expenses of Sri Sai Seva Samithi from dt.

20.02.2014 to 05.04.2015; Ex.R12 Original registration book of expenses of

Annaprasadam from 13.03.2014 to 02.04.2015; Ex.R13 is Public notice dt.

09.03.2014; Ex.R14 is Old committee treasurer handed over items list to new body, dt. 19.03.2014; Ex.R15 is Letter dt. 21.07.2014; Ex.R16 is

Pampliant of 8th anniversary day of Sri Sai Baba Temple, dt. 30.04.2014;

Ex.R17 is Pampliat of 8th anniversary day of Sri Sai Baba Temple dt.

30.04.2014; Ex.R18 is Allahabad Bankl passbook of trust bearing account no. 50201284753 dt. 23.04.2014, Hydershakote Branch; Ex.R19 is Chanda

Books (2); Ex.R20 is Photographs (16) with CDs (5); Ex.R21 is

Annaprasadam receipts of Sri Sai Seva Samithi Trust Registered No.

5/IV/2014 (6nos); Ex.R22 is Notice No. 1/74/Soc/2013 dt. 23.01.2013 of

Govt. of AP registered and stamps department; Ex.R23 is Memo no.

5720/Societies/2013 dt. 23.12.2013 of Government of AP Registrar and

Stamps Department; Ex.R24 is letter of Sri Prem Chary/respondent no. 2 to

District Registrar, R. R. District Dt. 17.01.2014; Ex.R25 is CC of FIR no.

183/2013 of PS Rajendranagar, dt. 09.03.2013; Ex.R26 Affidavit if Sri Sai

Seva Samithia Registered No. 1183/11 dt. 22.04.2013; Ex.R27 Notice of Sri

Sai Seva Samithi to attend meeting dt. 15.02.2013; Ex.R28 is 3nos of photographs with CD; Ex.R29 is Registered Agreement of Sale dt.

20.02.2015 executed by Sri Sayini Venkateshwarlu in favour of Sri Sai Seva

Samithi Trust represented by its Trust Chairman Sri Vedla Vittal/respondent no.1; Ex.R30 is Bank statements from 01.06.2015 to 09.12.2015.

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13.It is indeed, rival claims are there in respect of maintenance of the temple. None of them exchanged any allegations in respect of misappropriation of funds. However, both have been possessing donations given by the devotees.

14.In-as-much as suit property is a temple, no one can be precluded from entering into it. Perusal of Ex.P1 and Ex.R1 discloses that

Respondent no.1 conveyed the plaint schedule property in favor of Shri Sai

Baba Temple working under Sri Sai Seva Samithi which is represented by its

President D. Venkataiah Goud and Respondent no.2 is an adviser, regarding this there was no dispute from respondents. The contention of the respondents on the strength of Ex.R1 that they have proceeded with activities from the date of Ex.R9 trust deed. Aggrieved by said action of the Respondents, petitioners filed this suit. It appears that the petitioner being the president of the temple under Ex.P1 prima-facie is proved to have been collecting donations from the devotees by maintaining account books under Ex.P5 and P6 that shows day to day activities of the temple.

Whereas, the respondents had taken aid to contest the matter on the strength of Ex.P9 trust deed but maintainability of such trust is questioned in the suit. Therefore, the same can be gone into during the course of trial.

As such, prima-facie case is made out by the petitioner to accept their claim at this juncture. So far as balance of convenience is concerned it tilts in favour of the petitioners as petitioner no.1 is represented by the president D. Venkataiah Goud maintaining temple activities with the aid and help of donations being collected from the devotees and maintaining the account books. In the event the temporary injunction prayed for is granted is vacated by allowing the appeal, it would result into great and irreparable loss and injury to the day to day activities of the temple undertaken by the president of the temple and there is every likelihood of further invasion of respondents in day to day activities of the temple that

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would result into hardships to one and all including the devotees who do visit temple for Darshan. As such, it is necessary to curb interference of the respondents. Accordingly the appeal is liable for dismissal as I do not find any tenable grounds to interfere with the findings of learned trial

judge. Thus I answered this point.

POINT NO.2:

15.In the result, CMA is dismissed

Typed to my dictation, corrected and pronounced by me in the open court, on this the 19 th day of January, 2023

II Additional District Judge, Ranga Reddy District

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR APPELLANT :- - NIL-FOR RESPONDENT :- -Nil-

DOCUMENTS MARKED

FOR APPELLANT :- - NIL-FOR RESPONDENT :- -Nil-

II Additional District Judge, Ranga Reddy District

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As I am busy with judgment in OS no. 71 of 2019 and orders in IA no. 1299 of 2019, judgment not ready. For judgment Call on 05.12.2022

II ADJ

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DECREE

IN THE COURT OF II ADDITIONAL DISTRICT JUDGE,

RANGA REDDY DISTRICT AT L.B. NAGAR ,

PRESENT: M.SRINIVASA CHARY, II Addl. District & Sessions Judge,

Monday, dated this the 8th day of August, 2022

C.M.A. NO. 38 OF 2022

Between :- Mrs. Azeera Ahmed Saleh, D/o. Late Ahmed Bin Saleh Jabri, Aged about 62yrs, Occ: Household, Presently Residing in UAE, Represented by her GPA Holder, Ali Bin Salam Bin Mafooz, S/o. Salm Bin Mohammed Bin Mafooz, Aged about 50yrs, Occ: Business, R/o.H.no. 23-1-915, Mogalpura, Hyderabad. --Appellant

AND

1. Mrs. Habiba, D/o. Late Ahmed Bin Saleh Jabri, W/o. Naser Abdullah Al – Saseri, Aged about 58yrs, Occ: Housewife, presently residing at 53, Al-yahar Alayen, AbbuDhabi, UAE.

2. Mrs. Noora D/o. Late Ahmed Bin Saleh Jabri, W/o. Salam Mohammed Al Kesari, Aged about 55yrs, Occ: Housewife, presently residing at No.6, Al-Yahar Alayen, Abbu Dhabi, UAE.

3. Mrs. Saleh Bee Ahmed Saleh D/o. Late Ahmed Bin Saleh Jabri, W/o. Yaseen Mohammed, Aged about 68yrs, Occ: Household, R/o. Villa No. 7, Al-Zaab, Abu Dhabi, UAE.

4. Mrs. Eishah Ahmed Saleh, D/o. Late Ahmed Bin Saleh Jabri, W/o. Saleh Ali, Aged about 57yrs, Occ: Housewife, R/o. Villa No. 7, Al-Zaab, Abu Dhabi, UAE.

5. Mohammed Bin Ahmed Jabri (died) per LRs.

6. Saleh Bin Mohd. Jabri S/o. Late Mohd. Bin Ahmed Jabri, Aged about 43yrs, Occ: Business, R/o. H.no. 1-1/1, Kothapet Village, Balapur Mandal, Jalpally Municipality, Ranga Reddy District.

7. Awad Bin Mohd. Jabri S/o. Late Mohd. Bin Ahmed Jabri, Aged about 35yrs, Occ:

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Business, R/o. H.no. 1-1/1, Kothapet Village, Balapur Mandal, Jalpally Municipality, Ranga Reddy District.

8. Smt. Asra Jameel W/o. Late Mohd.Bin Ahmed Jabri, Aged about 45yrs, Occ: Household, R/o. H.no. 1-1/1, Kothapet Village, Balapur Mandal, Jalpally Municipality, Ranga Reddy District.

9. Mrs. Ameena D/o. Late Mohd. Bin Ahmed Jabri, Aged about 36yrs, Occ: Household, R/o. H.no. 1-1/1, Kothapet Village, Balapur Mandal, Jalpally Municipality, Ranga Reddy District.

10 Mrs. Shaika D/o. Late Mohd. Bin Ahmed Jabri, Aged about 28yrs, Occ: Household, R/o. H.no. 1-1/1, Kothapet Village, Balapur Mandal, Jalpally Municipality, Ranga Reddy District. --Respondent

On appeal against Order and Decretal Order dated 28.04.2022 in

IA.No.72/2022 in O.S.No.412 of 2018 on the file of VII Additional Senior Civil

Judge, Ranga Reddy District at L. B. Nagar.

IA No. 72 of 2022

IN

OS No. 412 of 2018

Between: Mrs. Azeera Ahmed Saleh, D/o. Late Ahmed Bin Saleh Jabri, Aged about 62yrs, Occ: Household, Presently Residing in UAE, Represented by her GPA Holder, Ali Bin Salam Bin Mafooz, S/o. Salm Bin Mohammed Bin Mafooz, Aged about 50yrs, Occ: Business, R/o.H.no. 23-1-915, Mogalpura, Hyderabad. --Petitioner/Plaintiff AND

1. Mrs. Habiba, D/o. Late Ahmed Bin Saleh Jabri, W/o. Naser Abdullah Al – Saseri, Aged about 58yrs, Occ: Housewife, presently residing at 53, Al-yahar Alayen, AbbuDhabi, UAE.

2. Mrs. Noora D/o. Late Ahmed Bin Saleh Jabri, W/o. Salam Mohammed Al Kesari, Aged about 55yrs, Occ: Housewife, presently residing at No.6, Al-Yahar Alayen, Abbu Dhabi, UAE.

3. Mrs. Saleh Bee Ahmed Saleh D/o. Late Ahmed Bin Saleh Jabri, W/o. Yaseen

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Mohammed, Aged about 68yrs, Occ: Household, R/o. Villa No. 7, Al-Zaab, Abu Dhabi, UAE.

4. Mrs. Eishah Ahmed Saleh, D/o. Late Ahmed Bin Saleh Jabri, W/o. Saleh Ali, Aged about 57yrs, Occ: Housewife, R/o. Villa No. 7, Al-Zaab, Abu Dhabi, UAE.

5. Mohammed Bin Ahmed Jabri (died) per LRs.

6. Saleh Bin Mohd. Jabri S/o. Late Mohd. Bin Ahmed Jabri, Aged about 43yrs, Occ: Business, R/o. H.no. 1-1/1, Kothapet Village, Balapur Mandal, Jalpally Municipality, Ranga Reddy District.

7. Awad Bin Mohd. Jabri S/o. Late Mohd. Bin Ahmed Jabri, Aged about 35yrs, Occ: Business, R/o. H.no. 1-1/1, Kothapet Village, Balapur Mandal, Jalpally Municipality, Ranga Reddy District.

8. Smt. Asra Jameel W/o. Late Mohd.Bin Ahmed Jabri, Aged about 45yrs, Occ: Household, R/o. H.no. 1-1/1, Kothapet Village, Balapur Mandal, Jalpally Municipality, Ranga Reddy District.

9. Mrs. Ameena D/o. Late Mohd. Bin Ahmed Jabri, Aged about 36yrs, Occ: Household, R/o. H.no. 1-1/1, Kothapet Village, Balapur Mandal, Jalpally Municipality, Ranga Reddy District.

10 Mrs. Shaika D/o. Late Mohd. Bin Ahmed Jabri, Aged about 28yrs, Occ: Household, R/o. H.no. 1-1/1, Kothapet Village, Balapur Mandal, Jalpally Municipality, Ranga Reddy District.

...Defendants/Respondents

Claim: This Civil Miscellaneous Appeal is filed against the decree and orders passed in I.A.No. 72 OF 2022 in O.S.No. 412 of 2018 dated 28.04.2022 passed by VII Additional Senior Civil Judge, at Rangareddy District LB Nagar by setting aside the order and decree.

Appeal suit presented on : 13.06.2022 Appeal suit numbered on : 13.06.2022

Date of Disposal : 08.08.2022

C.M.A. NO. 41 of 16

:: 18 of 13 ::

Cost of the petition: RS. /- is paid under Art. 3(1)(a) of Sch. II of APCF and SV Act.

This Civil Miscellaneous Appeal is coming before me for final hearing on 20.07.2022 in the presence of Sri. B. Mohan, Advocate for the Appellant and Sri.Suresh Shiva Sagar, Counsel for Respondents and upon hearing and perusing the material on record and the matter having stood over for consideration till the day, this court doth the order and decree as follows:

I) That the Appeal suit of the Appellants be and the same is hereby allowed.

II) That the order and decreetal order dated 28.04.2022 passed in IA.No. 72 of 2022 in OS.No. 412 of 2018 on the file of VII Additional Senior

Civil Judge, LB Nagar, R.R.District is hereby set aside.

III) That consequently the IA no. 72 of 2022 is allowed garnting temporary injunction retraining the respondents no. 6 to 10 from alienating, the suit schedule property in favour of third parties pending disposal of the suit IV) The parties to this appeal suit are directed to bear their own costs.

Given under my hand and seal of the court on this the 8th day of August, 2022.

II Additional District & Sessions Judge, Ranga Reddy District at L. B. Nagar

MEMO OF COST

For Appellants For Respondents

1. Stamp on plaint

2. Stamp on vakalat

3. Stamp on process

4. Advocate’s fee

5. Miscellaneous ---------------------------------------------------------------- ----------------------------------------------------------------

II Additional District & Sessions Judge, Ranga Reddy District at L. B. Nagar

IN THE COURT OF THE XIII ADDITIONAL DISTRICT & SESSIONS JUDGE,

RANGA REDDY DISTRICT AT L.B.NAGAR

Present: M. SRINIVASA CHARY, XIII Additional District & Sessions Judge.

Friday, the 4th day of February, 2022

A.S.No.215 of 2017

Between:

M/s. RITEMED Pharma Retail Private Limited, Registered office at 707, Taramandal Commercial Complex, Saifabad, Hyderabad, Rep. by R.Venkat Rao, S/o. R.Matta Rao, Aged 48 years, Occ: Senior Associate – Infrastructure, R/o. Hyderabad. … Appellant/Defendant

AND

A.Suguna Sarada, W/o. Late A.Varadarajulu, Aged about 65 years, R/o. H.No.3-9-56, Anandnagar Colony, Panchayath Office Road, Ramanthapur, Ranga Reddy District. … Respondent

Appeal against the Judgment & Decree dt.04.05.2017 passed by the

learned I Addl.Junior Civil Judge, at L.B.Nagar, Ranga Reddy District, in

O.S.No.765 of 2015

Between:

A.Suguna Sarada, W/o. Late A.Varadarajulu, Aged about 65 years, R/o. H.No.3-9-56, Anandnagar Colony, Panchayath Office Road, Ramanthapur, Ranga Reddy District, … Plaintiff

AND

M/s. RITEMED Pharma Retail Private Limited, Registered office at 707, Taramandal Commercial Complex, Saifabad, Hyderabad, Rep. by R.Venkat Rao, S/o. R.Matta Rao, Aged 48 years, Occ: Senior Associate – Infrastructure, R/o. Hyderabad. … Defendant

AS.No.215 of 2017

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This appeal is coming before me for final hearing on 21.09.2021, in the presence of Sri A.Venkatesh, counsel for the appellant; Sri V.Venkata Mayur, counsel for respondent and upon hearing both sides, perusing the material on record and the matter, having stood over for consideration till this day, this Court passed the following:-

JUDGMENT

This is an appeal under Order XLI Rule 1 r/w.Section 96 CPC filed by the 1.

appellant/defendant questioning the validity of the judgment and decree dt.04.05.2017 in OS.No.765/2015 passed by learned I Additional Junior

Civil Judge, Ranga Reddy District at L.B.Nagar, whereby the suit of the

plaintiff for eviction was decreed.

For the sake of convenience, the parties to this appeal would be hereinafter 2.

referred to as per their status in the suit.

The plaintiff filed the suit for eviction of defendant from suit schedule 3.

property and to put her in vacant and peaceful physical possession thereof; for recovery of arrears of rent of Rs.29,577.36/-; and mesne profit of Rs.1,17,333.16/-.

In brief, the averments of the plaint are that the plaintiff is the owner of suit 4.

schedule property. The defendant is tenant inducted into the suit schedule property by virtue of an agreement of lease dt.15.02.2010 on monthly rental basis @ Rs.5,000/-, with an escalation of rent @ 5% periodically every year on the last paid rent, for a period of five years w.e.f 15.02.2010, for the purpose of running a Pharmacy Store and its allied business. As per agreed terms of tenancy, the defendant is under obligation to pay monthly rent on or before 10th of every month and that apart shall pay electricity, water consumption charges and service tax etc,.

it is also provided in the said agreement of lease that in the event of

AS.No.215 of 2017

3 of 12 breach of any conditions by the defendant, the agreement of lease stands terminated.

After periodical enhancement from February 2015 it is required to be paid @ 5.

Rs.6,077.54/-. While things placed so, the defendant without there being any cause filed a speculative and frivolous suit for injunction in

OS.No.192/2015 before the learned I Additional Junior Civil Judge, Ranga

Reddy District. The defendant having not satisfied in bringing the said lis, without discharging the obligation in payment of rent, under the guise of said lis, squatting on the suit property. Thus, he stopped the payment of rents from February, 2015. Therefore, he became willful defaulter in payment of rent from February, 2015 @ Rs.6,077.54/- and he became non-suited to remain in possession of the suit property as a tenant.

Consequently, the plaintiff got issued a legal notice dt.09.06.2015 calling upon the defendant to remit the rent for the period from February, 2015, vacate and surrender the physical possession to the plaintiff on expiry of 15 days period from the date of receipt of said notice. The defendant received the notice on 12.06.2015. He has neither chosen to comply with the notice nor replied therefor. In the said notice, the plaintiff claimed for mesne profit @ Rs.20,000/- per month for the unauthorized occupation of said shop from the date of expiry of notice till delivery of possession thereof.

6. The defendant filed written statement and resisted the suit on the following grounds. The plaintiff by suppressing and misrepresenting the material particulars filed this suit with dishonest intention to gain wrongfully and to cause wrongful loss to the defendant. Without there being any cause of action, the suit is filed and as such liable for dismissal.

The defendant is a limited company incorporate under provisions of 7.

Companies Act, 1956 and is inter alia, engaged in the business of retail

AS.No.215 of 2017

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Pharmacy, diagnostics and other allied services under the brand name and style of “MED PLUS”. It has authorized R.Venkat Rao to institute the suit, represent and depose on its behalf vide its board resolution dt.20.04.2015.

The defendant is India’s leading independent pharmacy chain with more than 8.

1000 stores in six states and it is India’s fastest growing health network.

The company offers genuine drugs, quality storage, wide availability and free home delivery. MedPlus pioneered value pricing in pharmaceutical retail industry and it serves more than Rs.2,00,000/- customers daily. It has more than Rs.1,00,000/- regular customers who are MedPlus card holders.

The plaintiff is the owner of suit schedule property. In 2010, in the course of 9.

business, the defendant intended to take the suit schedule property on lease for starting its retail Pharmacy outlet and for that purpose approached the plaintiff. After deliberation and negotiations, the plaintiff agreed to lease the schedule premises. At that time, it was agreed that the lease period would be for a minimum period of 10 years. At the time of taking premises on lease, the plaintiff stated that because of her tax problems/implications, she would be entering into lease agreement from time to time for a period of five years even though agreed period was for ten years and she assured that lease period would be ten years i.e., up to 2020 and agreement would be only nominal document. As per the understanding, the defendant and plaintiff entered into an agreement of lease on 15.02.2010 in which mentioned the lease period as five years.

10. The monthly rent fixed therein was Rs.5,000/- which has to be enhanced periodically. The lease agreement is in the custody of the plaintiff and copies were given to the defendant. Even though lease agreement was entered by mentioning tenure of five years, still the clear and categorical

AS.No.215 of 2017

5 of 12 understanding between the parties was that the lease would be up to 2020. At the time of lease agreement dt.15.02.2010, the plaintiff requested for refundable security deposit and accordingly the defendant paid an amount of Rs.60,000/- through DD No.718116 dt.08.02.2010 drawn on

Syndicate Bank, Ashok Nagar branch, Hyderabad.

11.The defendant started the retail outlet in the premises in the name and style of “MEDPLUS’. There are many customers of the defendant who buy medicines from the defendant’s outlet in the suit schedule property as the defendant sells/provides the medicines at a very reasonable price and also offers 10% discount on the medicines on selected drug and medicines.

There are many card holders who are attached to the outlet and closure of shop any day will have adverse impact on the customers. The defendant from the date of lease has been paying the rents promptly as agreed. After periodical enhancement, the present rent is Rs.6,077/- per month.

12. When the matter stood like thus, the plaintiff along with her family members from 06.04.2015 have been regularly visiting the schedule property and started pressurizing the defendant to pay higher rents and also demanded to give additional refundable security of Rs.3,00,000/-, failing which threatened to forcibly evict the defendant and from that day onwards they were causing disturbance to the business. Many times plaintiff created nuisance in the premises particularly at peak business hours and thus tarnished the image of the defendant before it customers. The defendant informed its inability to pay Rs.3,00,000/- towards additional deposit as it had already given Rs.60,000/- as security deposit. The defendant also impressed upon the plaintiff about the terms that the plaintiff accepted and agreed after due negotiations and about their right to continue in the premises for a minimum period of ten years. However, the plaintiff refused to heed such request of the defendant, thus prayed to dismiss the suit.

AS.No.215 of 2017

6 of 12 13.The learned trial judge on the basis of pleadings of plaint and written statement framed the following issues :

i) Whether the plaintiff is entitled to recover the vacant physical possession of the suit schedule property by evicting the defendant as prayed for?

ii) Whether the plaintiff is entitled to recover the arrears of four

months 26 days rent Rs.29,577.36 ps as prayed for?

iii) Whether the plaintiff is entitled to recover the mesne profit @

Rs.20,000/- per month from 27.06.2015 to 22.12.2015 and till the date of delivery of vacant possession of the suit schedule property as prayed for?

iv) To what relief?

14.During trial, the plaintiff herself examined as PW.1 and got marked Exs.A1 to

A5. Whereas on behalf of defendant, DW.1 examined and no documents are marked.

15. On hearing both sides and on appreciation of the oral and documentary evidence, the learned trial judge passed the impugned judgment. Assailing which the defendant filed the present appeal on the following grounds :

i) The impugned judgment and decree is unsustainable on facts and in law and probabilities of the case. As such, the same is liable to be set aside.

The trial court without appreciating the facts and circumstances ii) in right perspective has decreed the suit which is wholly incorrect and the order passed is a outcome of utter confusion and therefore liable to be set aside.

iii) The impugned order is passed without appreciating the facts on record and arguments advanced.

iv) The learned trial judge ought to have seen that no bonafide requirements was pleaded and urged by the respondent at any given point of time. The learned trial judge out to have been seen that the appellant had invested huge money for beautification of suit schedule premises to suit the requirements of its business and on par with its well known high standards only on the promise of the respondent that

AS.No.215 of 2017

7 of 12 the lease period will be for a minimum period of ten years and she shall not have any objection to the same.

v) The learned trial judge ought to have seen that there was no intention of respondent to use the suit schedule premises for her personal use at any point of time.

The learned trial judge ought not to have brushed aside the entire vi) evidence of DW.1 merely on the ground that he was not eye witness when the terms and conditions were negotiated between the parties, instead he ought to have attached importance to the fact that he was very well aware of the contents of the lease deed being the authorized signatory. The learned trial judge ought to have taken into consideration that DW.1 in his deposition deposed that lease period was to be extended by another five years. Instead of taking into consideration that entire issue of the present suit was revolving around the extension of lease period and not about whether the appellant witness has the knowledge about the terms and conditions of lease deed, the learned trial judge erred in come to conclusion that the same cannot be looked into.

vii) The learned trial judge ought to have seen that the appellant has never been a defaulter in paying the rents and he was very prompt in paying all allied bills pertaining to the suit schedule property.

viii) The learned trial judge ought to have placed reliance on the aspect of another suit in OS.No.661/2015 for eviction as the circumstances prevailing in that suit and of the present suit are entirely different and cannot be correlated to each other due to their distinctive nature and circumstances under which the suits were initiated. As regards, the aspect of payment of rents are concerned the appellant has been regular and prompt in making their payments till date and it has never defaulted in disbursing the rents. It is pertinent to mention that the dispute herein is centered around the extension of the lease period and as such the eviction on the basis of default of rents does not arise. Therefore, the conclusion of learned trial judge that there was force in the contention of the plaintiff is misconstrued and also erroneous in nature.

The trial judge ought to have seen that care and experience of the ix) appellant in handling and dispensing the drugs is highly professional and is a quality oriented establishment and the distinction the

AS.No.215 of 2017

8 of 12 appellant company and other medical stores which exists in and around the premises cannot be equated. The practices adopted by the appellant company are on par with international standards as they have controlled temperature for various drugs which are not available in and around the said schedule premises. Therefore, the conclusion that the customers would not be put to suffer, in the event the appellant is evicted from the suit schedule property is wholly baseless and erroneous.

x) The learned trial judge erred in granting liberty by confirming the respondent’s entitlement to recover mesne profits from the date of termination till the date of handing over the suit schedule property contrary to its own finding that there was no evidence advanced with regard to the percentage of rents which needs to be enhanced. The learned trial judge has not mentioned any ground nor has justified in arriving to the conclusion that the respondent is entitled to recover the mesne profits. Thus, prayed to allow the appeal by setting aside the impugned judgment and decree.

16. Heard the counsel for appellant and respondent and perused the record. The following points that arise for determination :

i) Whether the respondent/plaintiff agreed to lease the suit schedule property for a minimum period of 10 years, even though mentioned the lease period for five years?

ii) Whether the termination of lease is legally tenable?

iii) Whether the respondent is entitled for past and future mesne

profits, if so to what extent?

iv) Whether the impugned judgment dt.04.05.2017 in

OS.No.765/2015 passed by I Additional Junior Civil Judge, Ranga

Reddy District is factually tenable and legally sustainable or liable to be set aside?

v) To what relief?

17. POINT Nos.1 to 4 : Since the above points are interrelated, interconnected and interwoven, I would like to answer together in order to avoid repetition of evidence and discussion.

AS.No.215 of 2017

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18. The relationship between the parties is not in dispute. The appellant is the tenant of the respondent under Ex.A4 agreement of lease. But it is the contention of the appellant that though Ex.A4 was executed and reduced into writing prescribing the lease period of five years yet there was separate oral agreement between the parties that lease is for a minimum period of ten years and thus the appellant is seeking shelter of Section 92 (2) of Evidence Act to prove the existence of separate oral agreement in respect of period of lease is of ten years regarding which the document was silent. Whereas, accordingly to the respondent as PW.1 the lease is for five years only which is clearly recited in Ex.A4 and thereby denied the contention of the appellant. Reference is made to Ex.A4, the covenant-2 of

Ex.A4 reads as under :

“That the lease shall commence from the 15 th Day of February, 2010 and the period of lease shall be for 5 years and shall be renewable on expiry for further period of 5 years as may be mutually agreed upon between the parties herein. The rent of the premises shall be enhanced @ 5% after every years on the rent last paid i.e., on rent after each and every year on the then existing rent.”

Further covenant-10 of Ex.A4 reads as under :

“The lessor can terminate the lease before 14.02.2015 only if the lessee is in default of rent for three consecutive months or more at any time. However, the lessee is entitled to terminate this agreement and vacate the premises at any time during the subsistence of this tenancy by serving a 60 days notice on the lessor at the above address stating its intention of terminating the agreement and vacating the schedule property and the lessor shall not object to the same and shall permit the lessee to vacate the premises in a peaceful manner without any objection or hindrance from the lessor or anybody representing the lessor.”

19. Admittedly, Ex.A4 clearly emanating the period of lease for five years from 15.02.2010, but the appellant wanted to prove the separate oral

AS.No.215 of 2017

10 of 12 agreement in respect of fact that Ex.A4 orally executed for a period of ten years and such understanding is silent thereunder. Except the evidence of appellant as DW.1, he did not make any attempt to prove such oral agreement. In the cross examination of DW.1 he admitted that as per

Ex.A4 the period of lease is mentioned as five years commencing from 15.02.2010 to 15.02.2015. He has also further admitted that after expiry of the lease period of five years, the plaintiff has demanded them to vacate the suit schedule property. The above material is sufficient to hold that

Ex.A4 was indeed executed for a period of five years but not for ten years as contended by the appellant. Under the proviso 2 of Section 92 of Indian

Evidence Act, oral evidence may be adduced in support of oral agreement between the parties as to any matter on which the written document is silent. It is crystal clear from the plain reading of such proviso that such oral evidence of separate agreement is admissible only if the document is silent as to the matter and the agreement sought to be proved is not inconsistent with the terms of the document. Here on a plain reading of

Ex.A4, no prudent person would understand that period of lease is silent therein. As there is stipulation of period of five years from the date of its execution and therefore it cannot be said that agreement is inconsistent.

Therefore, the appellant cannot take shelter of proviso 2 of Section 92 of

Indian Evidence Act.

20. Coming to the termination of lease under Ex.A1 dt.09.06.2015, the plaintiff has stated that after expiry of the stipulated tenancy of five years, since no mutual conscience arrived between the plaintiff and defendant for renewal of the lease, the plaintiff called upon the defendant to vacate and handover the physical and vacant possession. But instead of vacating the same, the defendant went on squatting over the property of the plaintiff and filed OS.No.192/2015 for injunction with baseless ground. Ex.A1 was

AS.No.215 of 2017

11 of 12 received by defendant under Ex.A3 acknowledgment. In the cross examination of DW.1 he claimed that they got issued a reply notice to

Ex.A1, but he stated that he did not file such reply notice and denied the suggestion posed to him that no such alleged reply was given by the defendant. In the absence of reply notice got issued by the defendant, it has to be and safely concluded that no reply notice was got issued by the defendant to the Ex.A1. Inasmuch as there was no renewal of lease after expiry of five years from 14.02.2010, once the termination notice under

Ex.A1 was got issued by the plaintiff which was received by defendant and when no reply therefor is given it has to be and as such held that the termination of lease is validly done. Be that as it may, another ground on which the plaintiff was constrained to file the suit was that the defendant even after receipt of termination notice under Ex.A1 had neither chosen to give any reply therefor nor did he comply the demand sought for thereunder. Moreover, the defendant stopped the payment of rents from

February, 2015 and he became willful defaulter with effect from 2015 @

Rs.6,077.54 paise. In this respect, reference is made to the material brought out in the cross examination of DW.1 in which he admitted that the plaintiff got filed IA.No.477/2016 seeking direction to the defendant to pay the arrears of rent from February, 2015 to 26.06.2015 and subsequently from 27.06.2015 till the date of suit and from 23.12.2015 till the disposal of the suit. Admittedly, the said IA was allowed under Order

XV-A CPC on 19.08.2016. DW.1 admitted that after allowing the petition, they paid the rent to a tune of Rs.1,09,766/- and later on they did not pay the rents. However, DW.1 offered an explanation that they attempted to pay the amount to the plaintiff but the plaintiff refused to receive and for that reason they did not pay the amount. It was further brought out that they did not file any petition to permit them to deposit the rent in the

AS.No.215 of 2017

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Court to credit into the suit. It may be stated here that if the defendant was so prompt as he claimed in payment of rents, he need not wait for an order from the trial Court under Order XV-A CPC vide IA.No.477/2016 to pay the arrears of rent in lump sum at once to the tune of Rs.1,09,766/-, it could have paid the same every month. Moreover, the conduct of the defendant could be seen from its inaction in not even seeking permission from the Court as contemplated under Order XV-A CPC to go on depositing the admitted rents. This is a sure index that the defendant deliberately evaded the payment and went ahead to move the civil Court vide OS.No.192/2015 for injunction to protect his possession. Therefore, the material brought on record including the evidence referred to above elicited from cross examination of DW.1 takes the Court to hold that the defendant has committed willful default in payment of the rent particularly after expiry of lease period. As such, soon after receiving the termination notice under Section 106 Transfer of Property Act vide Ex.A1 possession of the defendant became unlawful and as such he is not only liable for eviction but also for mesne profits regarding which the trial

Court gave liberty to the plaintiff to move appropriate application under

Order XX Rule 12 CPC which is an appropriate relief passed by the trial

Court in the absence of evidence on record to quantify the past and future mesne profits.

21. Coming to the contention of defendant that he made huge investment for beautification of the shop and when there was no pleading to the effect that the premises was indeed required for the plaintiff for bonafide requirement, eviction could not have been passed, indeed appears to be at the very outset attractive and alluring but when it is deeply examined with reference to the terms of Ex.A4 and surrounding circumstances, it would not stand to the test of judicial scrutiny for the reason that the defendant

AS.No.215 of 2017

13 of 12 is well aware of the factum of lease period of five years as mentioned in

Ex.A4. Therefore, it should have invested the amounts required for such period and on that ground eviction order cannot be set aside. This apart the plaintiff is not required to plead and prove the bonafide requirements in a suit for eviction when he followed the procedure under Section 106 of

Transfer of Property Act in terminating tenancy.

22. Upon careful analysis of the impugned judgment, I do not find any infirmity or irregularity warranting interference. Consequently, the judgment of the trial Court needs to be confirmed resultantly appeal is liable for dismissal as devoid of merits. Accordingly, I hold under these points.

23. POINT No.5 :

In the result, the appeal is dismissed as devoid of merits. Consequently the impugned judgment dt.04.05.2017 in OS.No.765/2015 passed by I Additional

Junior Civil Judge, Ranga Reddy District at L.B.Nagar is confirmed. In the circumstances of the case, there is no order as to costs.

Dictated to the Stenographer, transcribed by him, corrected and pronounced by me in the Open

Court on this the 4 th day of February, 2022.

XIII ADDITIONAL DISTRICT JUDGE

RANGA REDDY DISTRICT

APPENDIX OF EVIDENCE

WITENSSES EXAMINED

NIL

EXHIBITS MARKED

NIL

XIII ADDITIONAL DISTRICT JUDGE

RANGA REDDY DISTRICT

IN THE COURT OF THE XIII ADDL DISTRICT& SESSIONS JUDGE,

RANGA REDDY DISTRICT AT L.B.NAGAR.

PRESENT: M. SRINIVASA CHARY,

XIII ADDL.SESSIONS JUDGE,

DATED THIS THE 12th DAY OF JANUARY, 2022

CRIMINAL APPEAL No. 359 OF 2015 Between:-

MD.Sajju, S/o. Hussain, Aged 42 years, Occ: Driver, R/o. H.No.2-2-30, Shivareddypet (V), Vikarabad Mandal, Rangareddy District. … Appellant AND

The State of Telangana, Rep. by the SHO Moinabad Police Station, Through Public Prosecutor. … Respondent

This Criminal Appeal is preferred against the Judgment dt.30.04.2015 passed by the learned Special Magistrate, Court-II, Ranga Reddy District at

Rajendranagar in:

C.C. No. 284 of 2014 Between:-

The State of Telangana., Rep. by the SHO, Moinabad Police Station. … Complainant AND

MD.Sajju, S/o. Hussain, Aged 42 years, Occ: Driver, R/o. H.No.2-2-30, Shivareddypet (V), Vikarabad Mandal, Rangareddy District. … Accused

This appeal is coming on this day before me for final hearing in the presence of Mrs. P.Vidyavathi, Addl. Public Prosecutor for appellant and Sri G.Sanjay Kumar, counsel for Respondents/Accused and having stood over for consideration to this day, the court delivered the following:-

J U D G M E N T

1.This is a Criminal Appeal filed under Section 378 (3) (a) of

Cr.P.C by the accused feeling aggrieved by the judgment

CRLA No. 359/2015

2 of 12 of learned Special Magistrate, Court-II, Ranga Reddy

District dt.30.04.2015 in CC.No.284/2014, whereby he was convicted and sentenced to undergo rigorous imprisonment for one year for the offence punishable under Section 304-

A IPC and to pay a fine of Rs.1,000/- and further sentenced to undergo rigorous imprisonment for six months and to pay fine of Rs.500/- for the offence punishable under Section 337 IPC and in default to suffer simple imprisonment for three months.

2.In brief, the accusation against the accused as per charge sheet are as under :

ON 12.04.2014 at 00.30 hours D.Sudhakar Reddy (PW.1) lodged a report with police Moinabad alleging that on 11.04.2014 around 24.00 hours he along with his villagers D.Madhukar Reddy, Praveen Reddy, Harikrishna

Reddy, Ramesh Reddy and Rajkumar Reddy were proceeding to Boinipally vegetable market, Secunderabad in Tata Ace auto bearing No.AP 28 TE 1893 to sell vegetables, near Kirana weigh bridge at Hyderabad-Bijapur highway at

Moinabad, one of the tyres of their vehicle punctured, then the driver of auto stationed the vehicle by the side of the road, switched on the indicators and auto driver-L.Lingam and Rajkumar were replacing the punctured tyre, the driver of lorry bearing No.AP 29 V 5067 came in opposite direction from

Hyderabad towards Chevella in a rash and negligent manner and dashed the auto, resulting which the occupants of auto namely Rajkumar Reddy received injuries to his left hand and Ramesh Reddy who stood behind the auto received injuries and died on the spot. The remaining persons did not receive any injuries. After the accident, the driver fled away from there by leaving the lorry at the spot. He will identify the lorry driver. On the strength of his report, LW13- S.Ravi Chandra, Inspector of Police, PS Moinabad registered a

CRLA No. 359/2015

3 of 12 case in Cr.No.86/2014 under Section 304-A and 337 IPC and entrusted the investigation to PW.8- K.Saidulu, S.I of police, PS Moinabad. PW.8 examined and recorded the statements of witnesses, visited the scene, conducted scene of offence panchanama, drafted the rough sketch of the scene in the presence of mediators, proceeded to Chevella Mortuary where the dead body was preserved for post mortem examination and conducted inquest there.

PW.6 Dr.Mahipal Reddy conducted autopsy over the dead body of the deceased. Later, the dead body was handed over to his relatives for his last rites. On 16.04.2014, the accused was arrested. The Medical Officer opined that the cause of death was due to internal bleeding injuries leading to cardio respiratory arrest. PW.7 – M.V.Prasad Rao, MVI inspected the vehicle and issued a report opined that the accident occurred was not due to any mechanical defects of the vehicle. Dr.Srinivas (LW.12) who treated

K.Rajkumar Reddy (PW.3) issued Medical Certificate and opined that PW.3 received simple injuries. After completion of investigation, he laid charge sheet.

3.The learned Magistrate has taken the cognizance for the offences punishable under Section 304-A and 337 IPC. On appearance of the accused, copies of documents were furnished to him as required under Section 207 Cr.P.C. The accused was examined under Section 251 Cr.P.C and substance of accusation was read and explained to him by the learned Magistrate who denied the offences, pleaded not guilty and claimed to be tried.

4.To substantiate the case of prosecution, PWs.1 to 9 examined and Exs.P1 to P8 market. After closure of prosecution evidence, the accused was examined under

Section 313 Cr.P.C with reference to incriminating

CRLA No. 359/2015

4 of 12 material, he denied the same. The learned Magistrate after hearing the Public Prosecutor and defense counsel, passed the judgment on 30.04.2015 and convicted the accused as referred above, assailing which the present appeal is filed by the accused on the following grounds :

i) The impugned judgment dt.30.04.2015 is against law and contrary to the facts and evidence on record, as such liable to be set aside.

ii) The trial court grossly failed to consider the evidence on record in proper perspective. On assumptions and presumptions passed the impugned judgment on the basis that only vague suggestions were made to the Investigating Officer and no concrete evidence is adduced by the accused. Therefore, the impugned judgment suffers from errors apparent on the face of the record.

iii)The trial court came to the complete misconstrued conclusion by not considering the cross examination of prosecution witnesses and the decisions relied upon by the accused. The trial court erred in not appreciating the identity of the appellant is not established as the driver of the offending vehicle, as per the version of the prosecution witnesses was identified for the first time in the court by deposing in their examination in chief, but the trial court did not properly appreciate the important contentions raised by the learned defense counsel and thereby did not take into consideration of the authorities relied upon by the accused. Inspite of finding material discrepancies in the prosecution case, the trial court has chosen to pass the conviction. The trial court failed to look into the ingredients required for the offence under Section 304-A and 337 IPC.

5.Heard the counsel for accused and learned Additional

Public Prosecutor and perused the record.

6.The following points that arise for determination :

i) Whether the prosecution had proved the guilt of the accused for the offence under Section 304-A and 337 IPC beyond all reasonable doubt?

CRLA No. 359/2015

5 of 12 ii) Whether the judgment of the trial court is factually tenable and legally sustainable or liable to be set aside? iii) To what relief?

7.POINT Nos.1 and 2 : Since these points are interrelated,

I would like to appreciate the evidence on record to arrive at just decision. Before proceeding further, necessary ingredients to prove the offence under Section 304-A IPC may be extracted here :

i) Death of a person must have been caused; ii) It must have been caused by rash or negligent act of accused; and. iii) Such act of the accused must not amount to culpable homicide.

8.Out of nine witnesses examined, PW.1 (D.Sudhakar Reddy) is complainant/eye witness. PW.2 (T.Janga Reddy) father of the deceased. PW.3 (K.Rajkumar) is an injured. PW.4 (M.Kishan Naik) is the owner of the crime vehicle. PW.5 (Chandrasekar Reddy) is the panch witness for scene of offence. PW.6 (Gopal Reddy) is the panch witness for inquest. PW.7 (Dr.G.Mahipal Reddy) who is the Medical

Officer who conducted autopsy over the dead body of the deceased and issued post mortem examination report.

PW.8 (M.V.Prasad Rao) MVI Inspector who inspected the crime vehicle and issued report. PW.9 (K.Saidulu),

Investigating Officer who filed charge sheet. The evidence of PW.1 is to the effect that on 11.04.2014 at about 11.00

PM he along with Ramesh Reddy, Madhukar Reddy,

Praveen Reddy, Hari Krishna Reddy and K.Raj Kumar were proceeding in Tata Ace auto bearing No. AP 28 TE 1893 transporting carrot to Boinapally market, near Kiran weigh bridge, their Tata Ace auto tyre was punctured, then he

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6 of 12 stopped auto on the left side of the road, the driver of the auto changing the tyre after switch on the parkig lights.

Meanwhile, lorry bearing No. AP 29 VO 5067 came in high speed in wrong route and dashed the auto. Ramesh Reddy and Raj Kumar who stood at the auto sustained injuries.

Ramesh died on the spot. Rajkumar was shifted to Sai Ram

Hospital. He has seen the driver of the lorry, thereby he could identify the accused as the driver of the lorry at the time of accident. Ex.P1 is reported lodged by him.

9.PW.2 deposed that the deceased Ramesh Reddy is his son.

On 11.01.2014, his son, PW.1, Harikrishan Redy and

Vishnuvardan Reddy went to Boinipally market with load of carrot. At about 11.35 PM, he received phone call from

PW.1 that his son met with an accident at Kiran weigh bridge on the road leading to Hyderabad from Vikarabad.

Then he reached to the spot, there he saw Tata Ace auto bearing No. 1893 in a damaged condition. He had also seen the stationed lorry bearing No.5067. The driver of the lorry was still there. He had seen him, thereby this witness could identify the accused as the driver of lorry who caused the accident.

10.PW.3 deposed that he knows the deceased Ramesh Reddy.

PW.1, PW.2 and himself on 11.04.2014 were going to

Boinipally market to sell the carrot. They were going in

Tata Ace auto bearing No. AP 28 TE 1893. Near Moinabad weigh bridge, one of the tyres of their auto was punctured.

Then their vehicle was parked on left side of the road and the driver of the auto was changing the tyre, meanwhile a

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7 of 12 lorry came in opposite direction and dashed the Tata Ace auto. Himself and Ramesh Reddy sustained injuries,

Ramesh Reddy died on the spot. The lorry number which dashed their auto is AP 29 V 5067. The lorry came in wrong side from Hyderabad side. He had seen the person who drove the lorry. The accused was the person who drove the lorry at the time of accident. He sustained injuries on his left hand and on left leg.

11.PW.4 deposed that he owns two lorries bearing Nos. AP 29

V 5067 and AP 28 TA 6156. The accused worked as driver on his lorry bearing No. AP 29 V 5067 and he was a temporary driver. About a year back, his lorry was taken to

PS Moinabad, they informed him that his lorry met with accident, they further informed him that the driver of lorry caused the accident and went away. Then he took the accused and handed over him to the police.

12.PW.5 deposed that on 12.04.2014 at 7.00 AM at the instance of police, he went to Kiran weigh bridge on

Bijapur to Hyderabad stage highway. There police conducted scene observation report and sketch of scene of offence under Ex.P2 and Ex.P3 respectively. He signed both the documents.

13.PW.6 deposed that he is the Sarpanch of Pamena Village.

He knows the deceased Ramesh Reddy. On 12.04.2014 at about 10.00 AM police conducted inquest over the dead body of Ramesh Reddy in Chevella Government hospital.

He along with Venkat Reddy were present and signed on the inquest. Ex.P4 is the inquest report.

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14.PW.7 deposed that he is a Civil Assistant Surgeon in Area hospital, Chevella. On 12.04.2014 he conducted autopsy over the dead body of Ramesh Reddy. It was commenced at 11.30 PM and concluded at 12.30 PM. The antimortem injuries were noted in column 9 of PME report. He is of the opinion that the death was occurred due to internal bleeding and cardio respiratory arrest. Ex.P5 is the certificate issued by him i.e., PME report.

15.PW.8 deposed that he is MVI in RTI, Hyderabad. On 19.04.2014, he received requisition from SHO, Moinabad to examine crime vehicle bearing No. AP 29 V 5067, heavy goods vehicle. Accordingly, he examined the same in the premises of RTI, R.R.District at Attapur. He conducted road test of the vehicle. The damages which were noticed are mentioned in column 8 of his report, he is of the opinion that the accident was not due to any mechanical defects of crime vehicle. Ex.P6 is his report.

16.PW.9 deposed that on 12.04.2014 at 3.40 AM PW.1 presented Ex.P1 report to SHO, Ravichandra, Inspector of

Police in turn he registered it as Cr.No.86/2014 under

Section 304-A and 337 IPC and issued Ex.P7 FIR. Later, the file was entrusted to him for investigation. He recorded the statement of PW.1, visited the scene of offence in the presence of PW.5 and another. There he prepared Ex.P2 scene observation report and Ex.P3 sketch of scene of offence. After that he visited Chevella hospital where dead body was kept. There he recorded the statement of PW.2 and LW.3 –T.Prathap Reddy. He conducted inquest over

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9 of 12 the dead body of the deceased Ramesh Reddy in the presence of PW.6 and another under Ex.P4. After that body was sent for autopsy. On 13.04.2014 he visited Premier hospital where the injured underwent treatment and recorded statements of PW.3. On 16.04.2014 he examined

PW.4 and recorded his statement. PW.4 produced the driver of the crime vehicle, then he effected his arrest and sent him for judicial remand. On 19.04.2014 he got inspected the crime vehicle with MVI and issued Ex.P6 report after collection of Medical Certificate and PME report, he filed charge sheet on 31.05.2014. Ex.P8 is wound certificate of PW.3.

17.The evidence of PWs.1 to 3, 6, 7 and 8 proved the fact that death of the deceased had taken place in a fatal road accident that took place on 11.04.2014. PW.7 Medical

Officer opined that the death was occurred due to internal bleeding and cardio respiratory arrest and he issued Ex.P5

PME report. Thus, the prosecution is able to succeed in proving the first ingredient. Now the prosecution is expected to prove that such death must have been caused by rash or negligent act and said act must not amount to culpable homicide. In this regard, the evidence of PWs.1 and 3 is germane for consideration inasmuch as they are eye witnesses to the incident in question and of them PW.3 is also injured. Now it is necessary to look into the material brought out from their cross examination to see whether their deposition in examination in chief need to be relied upon and whether the evidence they deposed has a ring of

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10 of 12 truth. Admittedly, the incident took place at 11.00 PM. In the cross examination of PW.1, it has been specifically brought out that there were no street lights at the place of incident. Then there must be satisfactory evidence as to source of PWs.1 and 3 identifying the driver of the crime vehicle in such darkness. It is no doubt true that PW.1 in his examination in chief stated that their auto driver changing the tyre after switching on parking lights. This portion of switching on the parking light is not spoken by

PW.3. PWs.1 and 2 have categorically stated that they have seen the driver of lorry and thereby they could identify the accused as the driver of the crime vehicle. It is indeed the accused is a stranger to PWs.1 and 3 and that he is not known to them prior to the date of their evidence.

In such circumstances and more particularly when the fatal accident took place during night time at 11.00 PM, they must speak how they could identify the driver of the crime vehicle. In Ex.P1, PW.1 mentioned physical features of driver of the crime vehicle as he was short and stout and that he can identify him if he is shown to him. In cross examination of PW.1, it has been brought out that police did not conduct any test identification parade of accused in police station, but he was shown to him in the police station. He had admitted that he did not mention in his report and did not state in his statement that he saw the accused in police station. In the cross examination of

PW.3, he stated that he had seen the driver of lorry and that he can identify. Whereas, PW.9 Investigation Officer

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11 of 12 has admitted that he did not conduct test identification parade of accused with PWs.1 to 3 and that he did not file any document to show that PW.1 running transport business nor did he seize any document pertaining to accused to show that he was driver of the lorry at the time of accident. As such, what all PW.4 claiming to be owner of the crime vehicle stated,will not throw any light in the absence of any document of registration of said vehicle appearing in his name. It is worthy to mention here that if the Court needs to gather from the demeanor of the witness admitting the identity of the accused is not reliably on the basis of prominent enragementof the image of the accused, absolutely there is no hurdle in relying upon such testimony whereby the witnesses prove the identity of the accused as the person involved in the crime. Such reliance is indeed possible more particularly when there are no grounds administered, suggested or proved on record to attribute any motive to the witnesses for falsely involving the accused in the offence, thereby it becomes a case of unimpeachable evidence revealing the identity of the accused. The test identification parade is only to help the investigation agency. One of the methods of establishing identity of the accused is test identification parade. The

Hon’ble Supreme Court in Ramanatham Vs. State of

Tamil Nadu reported in 1978 AIR 1204 has explained that, it “parade” enables the investigation officer to ascertain the correctness or otherwise of the claim of those witnesses who claim to have seen the perpetrator of the

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12 of 12 crime, and their capacity to identify him, and thereby fill the gap in the investigation regarding the identity of the culprit. The Hon’ble Supreme Court in number of cases has explained the value of evidence of identification. It is helpful both for the investigating agency and for the accused. When the witness is a stranger to the accused, he may be able to identify the alleged culprit in case test identification parade is held at an earliest possible time. As a rule of caution, the Court has to take into account of the fact whether the accused is not known to the prosecution witness and is identified in the test identification parade as well as in Court, the evidence of identification of them has to be scrutinized with great care and caution than in the case of known accused and should not be accepted unless free from all reasonable doubts. Admittedly, the accused is a stranger to PWs.1 and 3. Therefore, the investigating officer particularly when the incident had taken place at 11.00 PM (night) is expected to undertake the task of conducting test identification parade but PW.9 did not take any pain in that respect. As such, PWs.1 and 3 have for the first time identified the accused as the driver of the crime vehicle in the Court while their evidence was being recorded. The material brought out in the cross examination of PW.1 that police did not conduct any test identification parade of the accused but he was shown to him in the police station, takes the Court to doubt the evidence of PWs.1 and 3 particularly in respect of identification of the accused as the driver of the crime

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13 of 12 vehicle. It is surprising to note here that PW.1 in his cross examination had given voluntary statement by adding that they could catch hold the accused after the accident when he was running away from the place of offence. Such a statement appears to be a patent lie when reference is made to Ex.P1 report, wherein he had given physical features of the driver of crime vehicle and that he mentioned that he can identify if he is shown to him. If really the accused was caught hold by PW.1 or any other person along with him at the spot while he was running, as to why he could not be arrested by the police on 12.04.2014 itself as his arrest is shown in charge sheet on 16.04.2014. Whereas the evidence of PW.4 who claimed to be the owner of the crime vehicle in his deposition stated that the police informed him that his lorry met with an accident and they further informed that the driver of lorry caused the accident and went away. This particular statement of PW.4 goes contrary to the evidence of PWs.1 and 3 who were crucial and material witnesses to substantiate the accusation leveled against the accused by the prosecution.

18.Therefore, the material evidence on record is not convincing to believe that the accused was the driver of the crime vehicle at the relevant point of time of incident.

19.Even assuming for a moment that the accused was the driver of crime vehicle, whether the evidence adduced by the prosecution is sufficient to believe that the accused has committed offence under Section 304-A and 337 IPC. It is

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14 of 12 indeed PW.1 except as bald statement that the lorry came in high speed in wrong route and dashed to the stationed auto, did not specifically state as to what was the exact speed of the lorry at the relevant point of time. Coming to the testimony of PW.3, indeed he did not attribute either rash or negligent act on the part of the accused, inasmuch as his evidence would show that when the driver of their vehicle was changing the tyre, a lorry came in opposite direction and dashed the Tata Ace auto. Such as cryptic evidence without any details of rashness or negligent act on the part of the accused is not sufficient to fasten the liability upon the accused in respect of offences punishable under Section 304-A and 337 IPC. For all the foregoing reasons, the cumulative effect of evidence adduced by the prosecution is not sufficient to maintain conviction, but the trial court without proper appreciation of the evidence in the teeth of the ingredients as required for the offences under Sections 304-A and 337 IPC erroneously jumped into wrong conclusion and recorded conviction which in my view neither factually tenable nor legally sustainable. As such, this being the appellate Court needs to correct such an erroneous conviction by setting aside the same and the accused is consequently entitled to be acquitted on a benefit of doubt. Accordingly, I hold under this point.

20.POINT No.3 :

In the result, the appeal is allowed setting aside the conviction and sentence passed by learned Special Magistrate Court-II, Ranga Reddy District at Rajendranagar in CC.No.284/2014 vide judgment dt.30.04.2015.

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Consequently the appellant is acquitted under Section 255 (1) Cr.P.C for the offence punishable under Sections 304-A and 337 IPC. As a result thereof, the fine amount of Rs.1,500/- paid by the accused is ordered to be returned to him after expiry of appeal time. Bail bonds, if any shall stand cancelled after expiry of appeal time.

Typed to my dictation by the Stenographer, pronounced and corrected by me in Open court, on this the 12 th day of January, 2022.

XIII ADDL. DISTRICT & SESSIONS JUDGE,

RANGA REDDY DISTRICT.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

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EXHIBITS MARKED

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XIII ADDL.DISTRICT & SESSIONS JUDGE,

RANGAREDDY DISTRICT.

IN THE COURT OF THE ADDITIONAL METROPOLITAN SESSIONS JUDGE,

RANGA REDDY DISTRICT AT L.B.NAGAR.

PRESENT: M. SRINIVASA CHARY,

II ADDL. & SESSIONS JUDGE,

TUESDAY, THE 10th DAY OF JANUARY, 2023

CRIMINAL APPEAL No. 119 OF 2019

Between:-

K. Divakar S/o. Late K. Balraj, Aged about 32yrs, Occ: Security Guard, R/o. H.no. 1-59, Mankhal Village, Maheshwaram Mandal, R. R. District. … Appellant AND

1. The State of Telangana, Rep. by the SHO Pahadishareef Police Station,

2. Through Public Prosecutor. … Respondent

This Criminal Appeal is preferred against the Judgment dt.28.01.2019 passed by the learned V Addl. Metropolitan Magistrate – cum – V Addl. Jr. Civil

Judge,Cyberabad at L. B. Nagar in:

C.C. No. 29 of 2017 Between:-

The State of Telangana., Rep. by the SHO, Pahadishareef Police Station. … Complainant AND

K. Divakar S/o. Late K. Balraj, Aged about 32yrs, Occ: Security Guard, R/o. H.no. 1-59, Mankhal Village, Maheshwaram Mandal, R. R. District. … Accused

This appeal is coming on this day before me for final hearing in the presence of Sri J. Amar Satish, counsel for appellant/Accused and Addl. Public Prosecutor for respondent/complainant having stood over for consideration to this day, the court delivered the following:-

J U D G M E N T

1.This is a Criminal Appeal filed under Section 378 (3) (a) of Cr.P.C by the accused feeling aggrieved by the judgment of learned V Addl.

Metropolitan Magistrate – cum – V Addl. Jr. Civil Judge,Cyberabad at L. B.

Nagar dt.28.01.2019 in CC.No.29 of 2017, whereby he was convicted and

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2 of 9 sentenced to suffer rigorous imprisonment for one year for the offence punishable under Section 304-A IPC and to pay a fine of Rs.1,000/- and in default to suffer simple imprisonment for two months.

2.In brief, the accusation against the accused as per charge sheet is as under :

On 03.12.2016 Chinthachettu Balaiah (PW.1) lodged a report with Police

Pahadishareef alleging that on 03.12.2016 at about 9AM while

Ch.Shakunthala wife of complainant who is Sweeper in Jalpally Municipality was attending her sweeping duty near Pahadishareef Kaman, in the mean while, driver of Bus bearing no. AP29 TA 7650 belonging to Brilliant Grammer

School proceeding from Thukkuguda towards Hyderabad and reached near

Pahadishareef Kaman, dashed the wife of complainant; as a result, she fell down and sustained bleeding injuries on her head and died on the spot. On the strength of his report, LW13- V. V. Chalapathi, Inspector of Police, PS

Pahadishareef registered a case in Cr.No.566 of 2016 under Section 304-A IPC and entrusted investigation to P. Nageshwar Rao, SI of Police, PS

Pahadishareef (PW10). During the course of investigation, he examined and recorded the statements of witnesses, visited the scene, conducted scene of offence panchanama, drafted the rough sketch of the scene in the presence of mediators. On 06.12.2016 the accused was arrested on his surrender and enlarged on bail. The Investigating officer got inspected the crime vehicle and the Motor Vehicle Inspector opined that the Accident occurred not due to any mechanical defects of the vehicle and issued report and the medical officer who conducted autopsy over the dead body of the deceased opined that the death was due to Head injury and issued PME report. After completion of investigation and after collecting relevant documents, the investigating officer filed charge sheet.

3.The learned Magistrate has taken the cognizance for the offences punishable under Section 304-A IPC. On appearance of the accused, copies of documents were furnished to him as required under Section 207 Cr.P.C. The

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3 of 9 accused was examined under Section 251 Cr.P.C and substance of accusation was read and explained to him by the learned Magistrate who denied the offences, pleaded not guilty and claimed to be tried.

4.To substantiate the case of prosecution, PWs.1 to 10 examined and

Exs.P1 to P10 marked. After closure of prosecution evidence, the accused was examined under Section 313 Cr.P.C with reference to incriminating material, he denied the same and reported no defence evidence. The learned

Magistrate after hearing the Public Prosecutor and defense counsel, passed

the judgment on 28.01.2019 and convicted the accused as referred above, assailing which the present appeal is filed by the accused on the following grounds :

i) The impugned judgment is against law and contrary to the facts and evidence on record, as such liable to be set aside.

ii) The trial court ought to have considered the inconsistent evidence of the prosecution on material aspects and that the prosecution has not made out the ingredients of Sec. 304-A of

IPC iii) The trial court ought to have seen that the identification of accused by the prosecution witnesses i.e., PW2 and PW3 after lapse of considerable time for the first time in the court is highly improbable and unbelievable inspite of their admitting in the cross examination that after the accident, the driver of the vehicle fled away.

iv) The trial court ought to have seen that in the cross examination

PW2 and PW3 have admitted in their cross examination that they have not given any descriptive particulars of Accused and also not stated that they can identify the accused if they see again.

v) The trial court ought to have seen that the investigating officer has not secured any details and documents like trip sheet, driving license from the RTA pertaining to the accused.

5.Heard the counsel for accused learned Additional Public Prosecutor and perused the record.

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6.The following points that arise for determination :

i) Whether the prosecution had proved the guilt of the accused for the offence under Section 304-A IPC beyond all reasonable doubt? ii) Whether the judgment of the trial court is factually tenable and legally sustainable or liable to be set aside? iii) To what relief?

7.POINT Nos.1 and 2 : Since these points are interrelated, I would like to re-appreciate the evidence on record to arrive at just decision. Before proceeding further, necessary ingredients to prove the offence under Section 304-A IPC may be extracted here :

i) Death of a person must have been caused; ii) It must have been caused by rash or negligent act of accused; and. iii) Such act of the accused must not amount to culpable homicide.

8.Following is the summary of evidence adduced by the prosecution:

PW1 Ch. Balaiah deposed that deceased used to work as a sweeper in

Municipality, and about two years back, on one day, at about 8 to 9AM, deceased was sweeping the road at Pahadishareef Kaman, in the meantime driver of the school bus which was proceeding from Hyderabad to Tukkuguda, dashed against deceased due to which she sustained injuries and died on the spot. At the time of incident he was present at RCI, one of the relatives informed him about the accident. Immediately he rushed to Osmania Hospital and found dead body of the deceased. Thereafter he went to police station and lodged Ex.P1 report.

PW2 Vimala has deposed that about two years back on one day when himself and deceased were on duty and sweeping the road near

Pahadishareef Kaman at about 9AM, one school bus which was proceeding from Hyderabad to Tukkuguda, came in rash and negligent manner and dashed against deceased due to which she sustained severe head injury and died on the spot and accused fled away from the scene. PW2 further deposed that LW3 also witnessed the incident, subsequently the deceased was shifted to Osmania General Hospital.

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PW3 Y. Sridhar deposed that on 03.12.2016 at about 9AM when he was present near Pahadhishareef Kaman, the deceased and PW2 were on duty and sweeping the road near Pahadishareef Kaman, one Brilliant Grammer

High School bus bearing no. AP29 TA 7650 which was proceeding from

Hyderabad to Tukkuguda, came in rash and negligent manner and dashed against deceased due to which she sustained severe head injury and died on the spot and accused fled away from the scene. PW3 further deposed the deceased was shifted to Osmania General Hospital.

PW8 R. Sudha the then Associate Professor in Forensic Medicine

Department in Osmania Medical College has deposed that on 03.12.2016 at about 3PM on receipt of requisition from SHO, PS Pahadishareef to conduct autopsy over the dead body of Ch. Shakuntala, she commenced the autopsy at 3:10PM on the same day and found the antimortum injuries and opined that the death was due to head injury and approximate time of death is 6 – 12hrs prior to postmortem examination and issued Ex.P6 PME Report.

PW9 T. Goverdhan Reddy the then Motor vehicle inspector has deposed that on 09.12.2016 on receipt of requisition from the SHO, PS Pahadishreef to inspect the vehicle bearing no. AP29 TA 7650, accordingly, he inspected the vehicle on the same day and found no damages and opined that the accident occurred not due to any mechanical defects and issued Ex.P7 MVI report.

PW10 P. Nageshwar Rao, the then SI of Police, PS Pahadishareef has deposed that on 03.12.2016 at about 10AM on receipt of Ex.P1 from PW1,

LW13 registered a case in cr.no. 566 of 2016 under sec. 304-A of IPC and issued Ex.P8 FIR and entrusted investigation to him. During the course of investigation, he examined and recorded the statements of PW1 to PW3, LW4 to LW6 and visited scene of offence, and conducted scene of offence panchanama under Ex.P9 in the presence of mediators PW6 and PW7 and then he visited Osmania Hospital and conducted inquest panchanama over the dead body of deceased in the presence of PW4 and PW5 under Ex.P10.

Subsequently, he subjected the dead body to PME. On 06.12.2016 he served

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Sec. 41A Cr.P.C notice to accused and he made a requisition to MVI for inspecting the crime vehicle and after collecting PME report and MVI report and after completion of investigation, he filed charge sheet against the accused.

9.Out of ten witnesses examined, PW.1 is not an eye witnesses as he was present at RCI and one of his relatives informed him about the accident, accordingly he lodged Ex.P1 report. PW4 and PW5 are examined to speak inquest panchanama but they did not support except identifying their signatures under Ex.P2 and P3.

10.PW6 and PW7 are examined as panch witnesses for scene of offence and rough sketch but they too did not support the prosecution except identifying their signatures under Ex.P4 and P5. Though the learned APP subjected PW4 to PW7 to cross examination, yet nothing could be elicited to advance the prosecution case. Nevertheless, the death of the deceased in fatal road accident is not in dispute as PW8 medical officer conducted PME under Ex.P6 and according to her cause of death to the best of her knowledge and belief was due to “head injury”.

11.PW9 is Motor Vehicle Inspector, according to him, the accident occurred was not due to any mechanical defects and his report is marked as Ex.P7.

PW10 is the investigation officer.

12.Now the testimony of PW2 and PW3 who are examined as eye witness to the accident is germane for consideration to consider the factum of identification of the accused as the driver of crime vehicle at the relevant point of time and that he did drive it in rash and negligent manner and thereby caused the accident. Indeed, PW2 and PW3 in their chief examination could speak the fact that they can identify driver of the crime vehicle and accordingly, they identified the accused in the open court as the driver of the crime vehicle, they did also speak the factum of his rash and negligent driving. Let it be seen the material brought out in the cross examination of these two witnesses whether to accept or discard it. In the

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7 of 9 cross examination of PW2 it has been admitted by him that after the accident, the driver fled away, he did not state the descriptive particulars of the driver of the crime vehicle as well as did not state to police that he can identify the driver of the crime vehicle. Moreover police did not call him to the jail to identify the driver. Whereas, in the cross examination of PW3 he deposed that he stated to police that he can identify the driver of the crime vehicle but he did not state the descriptive particulars of the driver of the crime vehicle.

13. Coming to the evidence of PW10 investigating officer he admitted that there is no mention of name of the driver of the crime vehicle in the report or in Sec. 161 Cr.P.C statements. He admitted that PW1 and PW2 did not state to him that they can identify the driver of the crime vehicle if he is shown to him and the descriptive particulars they did not state to him, Moreover, he admitted that PW2 and PW3 stated to him that driver of the vehicle fled away.

It was brought out from his cross examination that he did not conduct any

Test Identification Parad in respect of the accused to fix him as driver of the offending vehicle. Moreover, he admitted that he did not examine any witnesses at the scene of offence. In an authority between Ravi Kapur Vs.

State of Rajasthan reported in 2013 (1) ALD (Crl.) 303 and in Sheo Shankar

Singh Vs. State of Jharkhand and another reported in AIR 2011 SC 1403 the

Hon’ble Apex Court took an identical view and concluded that “failure to hold

Test Identification is a matter which court will determine in the peculiar facts and circumstances of each case.” It is not out of place to mention here that the Indian Evidence Act 1872 deals with, among other things, the admissibility and inadmissibility of evidence before the court during trial, including the examination of witnesses and their evidentiary value of the documents produced before it. One of such provisions is Sec. 9 that deals with admissibility of facts which are necessary to explain or introduce relevant facts such as place, or date of offence, the name or identity of parties, other circumstances, and so on and so forth. Apart from Sec. 9, Sec.

54A of Code of Criminal Procedure states in simple words that when the

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8 of 9 identification of an accused is considered necessary for the purpose of investigation of an offence in which he was arrested, the court having jurisdiction may on the application or request of the officer incharge of police station, direct such accused to make himself available for identification by the witness or witnesses as the case may be in such a manner as the court may deem fit and proper.

14.In the case on hand under Ex.P1 report and Ex.P8 FIR no name of the driver of the crime bus is mentioned except mentioning the school bus bearing no. AP29 TA 7650. Admittedly, there is no prior acquaintance between PW2, PW3 and that he is a stranger.

In such circumstances, it is quite apt to refer here the authority of the

Hon’ble Supreme Court in Ramanathan Vs. State of Tamil Nadu reported in

AIR 1978 SC 1201 it was held that “the purpose of Test Identification Parade is to find out whether the accused is the perpetrator of the crime or not. If the name of the offender is not mentioned by the eye witnesses, then in such circumstances, such evidence becomes more important”. As per the investigating officer – PW10, he did not undertake the task of getting TI

Parade conducted by the concerned Magistrate against the accused. In the given circumstances, although TI Parade is not a substantive piece of evidence, yet it is fatal to the prosecution, as any amount of doubt that arises regarding the identification of the accused by PW8 for the first time before the court, even though he did not furnish the descriptive particulars to the police during his examination u/sec. 161 Cr.P.C. As such, the

Appellant/Accused is entitled for acquittal on a benefit of doubt. Moreover, the investigating officer failed to examine the owner of School Bus or the management of the school, atleast to show that the accused was driver working in the said school and thereby the investigating officer failed to take due diligence in conducting investigation. As such, the judgment of the trial court is neither factually tenable nor, legally sustainable and as such liable to be set aside Accordingly, I hold under this point.

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15.POINT No.3 :

In the result, appeal is allowed setting aside the judgment and order of sentence passed by trial court including fine dt. 28.01.2019. Consequently appellant is acquitted u/sec. 255(1) Cr.P.C for the offence u/sec. 304-A of IPC.

Fine amount of Rs. 1,000/- paid by the appellant is ordered to be returned to him, his bail bonds shall stand cancelled, after lapse of appeal time.

Typed to my dictation to the Stenographer, corrected and pronounced by me in the open court, on this the 10 th day of January, 2022.

ADDITIONAL METROPOLITAN SESSIONS JUDGE,

RANGA REDDY DISTRICT.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

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EXHIBITS MARKED

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ADDITIONAL METROPOLITAN SESSIONS JUDGE,

RANGA REDDY DISTRICT.

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Appellant is present. Judgment

pronounced (Vide Separate One).

In the result, appeal is allowed setting aside the order of sentence and judgment of trial court dt. 03.01.2018, consequently appellant is acquitted u/sec. 255(1) Cr.P.C for the offences u/sec. 304-A of IPC. Fine amount of Rs. 1,000/- paid by the appellant is ordered to be returned to

CRLA No. 119 of 2019

11 of 9 him after expiry of appeal time. His bail bonds shall stand cancelled after lapse of appeal time.

AMSJ